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Univk 


JBRARY 


y  of  California. 


Gl  FT    OF 


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Class 


CONTENTS. 


Taxesof  1880  to  1884,  inclusive 3 

Taxes  of  1885  to  1887,  inclusive 15 

Taxesof  1888  to  1892,  inclusive 21 

Concluding  observations 22 

Summary 25 

Appendix  (statements and  tables) 28 


C.\t<.«^.  .  &**-*~*t      «~.~r-V* 


SPECIAL  REPORT 


itc 


OF  THB 


ATTOENEY-GENEBAL 

OF  THE  STATE  OF  CALIFORNIA, 

ON 

RAILROAD  TAX  CASES  AND  RAILROAD  TAXATION. 


SPECIAL;   REPORT 


RAILROAD  TAX  CASES  AND  RAILROAD  TAXATION. 


Attorney-General's  Office,  ) 

Sacramento,  January  17,  1893.  \ 
To  the  Hon.  H.  H.  Markham,  Governor  of  the  State  of  California: 

Sir:  The  Legislature  being  now  in  session,  I  herewith  respectfully 
submit  a  special  report  concerning  the  railroad  taxes  remaining  unpaid 
by  various  railroad  companies  in  this  State  since  the  adoption  of  the 
new  Constitution.  In  this  connection  your  attention  is  called  to  what 
has  already  been  stated  upon  the  subject  of  "  railroad  tax  cases  "  in  my 
report  to  you,  dated  September  15,  1892.  Although  no  proposition  has 
been  made,  except  as  appears  by  the  communication  to  me  from  E.  L. 
Craig,  Esq.,  of  the  law  department  of  the  Southern  Pacific  Railroad 
Company,  under  date  of  January  12,  1893,  hereinafter  set  forth,  to  settle 
the  taxes,  I  make  this  report  and  collate  facts  and  figures  regarding 
these  matters  so  as  to  place  the  subject  intelligibly  before  you  and  the 
Legislature. 

The  following  report  regarding  unpaid  railroad  taxes  and  railroad  tax 
litigation,  pertains  only  to  the  Southern  Pacific  system  of  railroads. 
The  tabulation  in  the  Appendix  hereof  shows  the  taxes  for  each  year 
from  1880  to  and  including  1892,  the  sums  at  which  each  road  was 
assessed,  and  the  amount  of  the  State  and  county  taxes.  There  also 
appear  herein  two  statements,  which  were  used  as  Exhibits  "A"  and  UB," 
in  the  case  of  John  Rooney  vs.  E.  C.  Marshall,  Attorney-General,  et  al. 
(69  Cal.  647),  and  portions  of  the  reports  of  former  State  Controllers, 
regarding  railroad  taxes,  so  as  to  advise  you  and  the  Legislature  as  to 
the  then  condition  of  affairs. 

The  correspondence  above  alluded  to  is  as  follows: 

"  Law  Department  S.  P.  Co.,  ) 

"  San  Francisco,  Cal.,  January  12,  1893.  j 
" Hon.  W.  H.  H.  Hart,  Attorney-General: 

"  Dear  Sir:  I  am  in  receipt  of  your  favor  of  this  date  referring  to  the  pending  contro- 
versies between  the  people  of  the  State  and  the  railroad  companies  composing  what  is 
known  as  the  Southern  Pacific  System,  in  regard  to  taxes,  and  the  suggestions  heretofore 
made  on  behalf  of  the  companies  of  a  purpose  to  submit  some  proposition  for  an  adjust- 
ment of  the  same,  and  inquiring  whether  I  am  now  prepared  to  submit  such  a  proposi- 
tion in  their  behalf. 

"  In  answer  to  your  inquiry,  I  will  say  that  while  the  companies  referred  to  are  desirous 
of  promoting  a  speedy  settlement  of  these  controversies  upon  such  terms  as  shall  be  fair 
to  both  parties,  an  examination  of  the  subject  has  convinced  me  that  it  will  be  useless 
for  the  companies  to  submit  any  proposition  covering  the  whole  matter  and  involving 
any  degree  of  compromise,  because  of  the  very  serious  doubt  as  to  the  authority  of  any 
executive  officer  of  the  State  to  accept  the  terms  that  might  be  proposed,  so  as  to  bind 
the  State  and  relieve  the  companies  from  further  controversy  in  regard  thereto. 

"As  I  understand  it,  there  are  those  in  authority  who  claim  on  behalf  of  the  State  that 
nothing  short  of  the  full  payment  by  the  companies  of  the  amounts  assessed  against 
them  respectively  since  the  controversies  began,  with  all  the  cumulative  penalties  and 
costs  incurred  in  the  proceedings  had  to  enforce  the  assessments,  will  relieve  the  com- 


Bancroft  Library  —  3  — 

j .aiiics  Mid  their  propertiei  from  the  lawful  demands  of  the  State.  Thli  claim  Ui  made, 
notwithstanding  the  fact  that  for  these]  rs  up  to  and  including  L884,  nearly  if 

not  quite  all  of  the  suits  have  been  determined  either  by  judgment  In  fa\  or  01  the  com 
panics,  or  by  judgments  against  them  which  have  been  hilly  paid;  and  that  (or  1 1 1  *  - 
up  i"  an<i  i lie iini in  claimed  by  the  companies  that  the  assess- 

ments  unlawfully  included  the  Federal  of  the  aided  roads,  and  therel 

dered  the  assessments  void  ss  to  them.    The  fact  that  1 1 1 « -  Federal  franchises  " 
included  up  to  and  Including  the  years  1885-6  is,  1  think,  undisputed  by  any  one,  and 
whether  tl  o  included  In  1887  Is,  in  fact,  now  being  litigated  between  the  | 

The  effect  in  the  case  referred  to, of  the  judicial  finding  upon  this  controverted 
must  be  so  controlling  that  I  do  not  think  either  party  is  likely  to  make  to  the  other  a 
proposition  of  settlement  which  will  be, accepted. 
••  the  situation  is  further  complicated  by  the  fact  that  In  addition  to  the  suit  brought 

in   the  name  of  the   State  for  the  entire  tax  claimed   to  he  due  to  the   BtatC  and  CO  unties 
{87,  SUitS   have   heen  e<  mi  niciiccd    hy  t  he  several   COUntiCS   lor  their  alleged 

proportions  of  the  tax,  thus  subjecting  the  companies  to  a  douhlc  litigation  as  to  each 

county  t:i\. 

"The  <mly  other  case  now  pending  is  that  of  the  People  vs.  The  San  Pablo  ami  Tulare 
■  inn.  before  the  Supreme  Court  Of  the  United  Mate-.  The  very  small  amount 
involved  in  this  ease  is  insufficient  to  warrant  further  cent  rovexsy,  and  the  other  reasons 
which  were  Supposed  to  justify  it  seem  to  me  no  longer  to  exist". 

"In  view  of  the   fact    that    the   railroad  companies  referred    to  as   under  the  Southern 

Pacific  management  have  for  live  years  last  oast  heen  promptly  paying  their  ts 

levied,  and  propose  to  continue  so  doing, and  the  further  tact  that'  a  decision  of  this  ease. 
♦  •veil  if  adverse  to  defendant,  cannot  possibly  affect  the  main  questions  involved  in  the 
other  litigated  cases,  I  think  that  the  question  in  this  ease  will  have  ceased  to  he  impor- 
tant to  either  party  if  t  he  taxes  are  paid  in  full,  with  5  per  cent  penalty  claimed,  and 
legal  interest  from  the  date  of  alleged  delinquency  to  the  time  of  payment,  together 
witli  all  costs  that  may  he  chargeable  therein — in  other  words,  if  the  company  pays  to 
the  State  and  counties  all  that  can  by  any  possibility  be  recovered  in  the  event  of  a 
judgment  in  favor  of  the  people. 

••  I  understand  that  some  two  years  or  more  ago  this  company  tendered  full  payment 
tot  he  State  of  these  taxes,  and  that  its  officers  declined  to  accept  the  payment. 

"  1  now  renew,  to  you.  the  otter  to  pay  these  taxes,  penalties,  interest,  and  costs,  which 
if  it  be  accepted,  will  remove  at  least  one  of  the  irritating  questions  between  the  parties 
and  tend  to  promote  an  adjustment  of  the  others. 

this  1  will  add  that  I  understand  that  the  company's  counsel,  at  the  time  of  enter- 
ing into  the  stipulation  under  which  this  case  was  taken  up,  contended,  and  have  ever 
claimed  that  the  record  in  the  case  was  not  such  as  to  necessitate  a  decision  upon 
the  point  which  the  counsel  for  the  State  desired  to  have  settled;  and  t  hat  since  the  stipu- 
lation was  entered  into  the  Supreme  Court  of  this  State  has  rendered  a  decision  in  rela- 
tion to  the  statutory  provisions  for  the  collection  of  taxes  upon  which  this  action  was 
founded,  which  if  adopted  bv  the  supreme  <  lourt  of  the  United  states,  as  is  usual  upon 
such  questions,  may  reasonahly  he  expected  to  result  in  an  affirmance  of  the  judgment 
upon  these  minor  propositions' and  without  a  decision  upon  the  main  question  supposed 
to  be  presented  and  sought  to  be  settled. 

"Inasmuch  as  there  can  he  no  question  of  your  official  right  to  receive  in  settlement  of 

this  case  all  that  could  by  any  possibility  be  recovered  in  it,  1  submit  to  your  profes- 

aml  official  judgment  this  offer  to  settle  the  case  last  mentioned,  and  as  soon  as 

the  technical  doubts  as  to  any  authority  to  settle  the  remaining  cases  shall  have  been 

removed,  as  I  have  no  doubt  they  can  be,  I  will  submit  a  proposition  in  the  hope  of 

•  ttling  all  other  pending  questions. 

"  Respectfully  yours, 

K.  L  CRAIG." 

For  convenience  this  report  on  railroad  tax  cases  and  railroad  taxa- 
tion is  subdivided  as  follows: 

'—Taxes  of  1880  to  1884,  inclusive. 

Second — Taxes  of  1885  to  1887,  inclusive,  no  part  of  which  has  been 
paid. 

Third — Taxes  of  1888  to  1892,  inclusive,  all  paid  so  far  as  due. 

FIRST. 

Taxes  of  1880  to  1884. 

Statements  numbered   1    and  2  in   the  Appendix  hereof  show  the 

~>c(l  value  of  the  various  railroads  in  the  State  for  the  years  1880 

and  1881,  as  appears  by  the  State  Controller's  report  for  the  thirty- 


—    4    — 

second  and  thirty-third  fiscal  years,  page  23.  Said  report  shows  that 
for  1880  the  railroad  taxes  for  State  purposes  were  $199,514  50,  and 
the  delinquent  taxes  for  State  purposes  $196,805  81;  for  the  year  1881 
the  amount  of  taxes  for  State  purposes  was  $228,134  31  and  delinquent 
taxes  for  State  purposes  $220,317  61.  Thus  it  appears  that  only  a  small 
portion  of  the  taxes,  and  those  by  one  or  two  roads,  were  paid.  In 
reference  to  this  matter  the  Controller,  Hon.  D.  M.  Kenfield,  states 
(p.  23): 

"In  order  to  comprehend  how  great  was  the  injustice  done  to  the  revenue  of  the  whole 
State  it  must  be  understood  that  in  addition  to  the  delinquent  State  taxes,  there  was 
also  a  delinquency  of  the  railroads  to  the  several  counties  in  the  taxes  of  1880  of  $351,- 
894  68,  and  of  1881  of  $349,039  50;  making  a  total  delinquency  of  State  and  county  taxes 
for  the  two  years  of  $1,118,057  60. 

"Since  the  delinquency  of  1881,  the  San  Francisco  and  North  Pacific  Railroad  Com- 
pany paid,  under  protest,  their  taxes  delinquent  of  that  year,  amounting  to  $8,528  10,  and 
the  North  Pacific  Coast  and  South  Pacific  Coast  have  each  paid  its  taxes  due  for  1880, 
amounting  to  $7,285  39;  these  amounts  representing  the  State  portion  of  the  tax.  Since 
the  close  of  the  last  fiscal  year,  there  has  also  been  paid,  in  the  various  counties,  by 
several  of  the  railroad  companies,  about  60  per  cent  of  the  tax  for  the  respective  vears, 
1880  and  1881,  as  follows: 

"Central  Pacific  Railroad  Company,  in  Sacramento  and  Merced  Counties,  $33,855  78. 
State  portion,  $13,105  62. 

"Southern  Pacific  Railroad  Company,  in  Kern  County,  $57,530  48.  State  portion, 
$16,021  93. 

"Sacramento  and  Placerville  Railroad  Company,  in  Sacramento  and  El  Dorado  Coun- 
ties, $12,105  82.     State  portion,  $4,381  56. 

"Amador  Branch  Railroad  Company,  in  Sacramento  County,  $3,421  09.  State  portion, 
$1,476  78. 

"California  Pacific  Railroad  Company,  in  Sacramento  and  Yolo  Counties,  $9,267  03. 
State  portion,  $4,003  55. 

"  Northern  Railway  Company,  in  Yolo  County,  $5,545.    State  portion,  $2,391  63. 

"  Vaca  Vallev  and  Clear  Lake  Railroad  Company,  in  Yolo  County,  $2,419.  State  portion, 
$1,044. 

"  Making  a  total  on  account  of  State  taxes  of  $58,239;  leaving  due  the  State  for  taxes  of 
years  1880  and  1881,  a  balance  of  $358,884  42. 

"  It  is  not  surprising  that  the  failure  of  the  railroads  to  pay  their  taxes  should  have 
caused  widespread  consternation.  The  whole  revenue  system  of  the  several  counties 
was  disarranged  thereby;  the  ordinary  obligations  of  the  counties  could  not  be  fully  met, 
and  in  many  of  the  counties  the  public  schools  were  closed  for  want  of  funds. 

"A  serious  phase  of  the  subject  is,  that  in  most  of  the  counties  the  Boards  of  Super- 
visors considered  the  propriety  of  reducing  the  valuation  fixed  by  the  State  Board  of 
Equalization,  in  which  body  the  Constitution  fixed  solely  the  power  to  assess  railroads; 
and  in  the  counties  of  Alameda,  San  Mateo,  Yolo,  and  Sacramento,  the  Boards  of 
Supervisors  did  reduce  the  assessment  of  railroads  apportioned  to  them  by  the  State 
Board  of  Equalization. 

"  To  test  the  rights  of  such  action  by  the  County  Boards,  a  case,  at  the  instance  of  the 
State  Board,  was  brought  before  the  Supreme  Court  of  this  State. 

"The  Court  rendered  its  decision,  holding  that  the  County  Boards,  in  reducing  assess- 
ments, acted  in  violation  of  the  Constitution. 

"  I  have  done  all  that  lav  in  my  power  to  force  the  collection  of  the  railroad  taxes,  but 
without  success.  The  ordinary  process  of  collecting  taxes  is  to  offer  the  property  for 
sale,  depending  on  bidders  to  purchase  the  property.  From  the  nature  of  the  railroad 
property,  it  was  thought  that  it  was  not  probable  that  any  purchaser  could  be  found  to 
purchase  a  portion  of  a  road  located  in  a  county. 

"I  therefore  had  recourse  to  the  provisions  of  Section  3899  of  the  Political  Code,  which 
reads  as  follows:  '  The  Controller  mav,  at  any  time  after  a  delinquent  list  has  been 
delivered  to  a  collector,  direct  such  collector  not  to  proceed  in  the  collection  of  any 
tax  on  said  list  amounting  to  three  hundred  dollars,  further  than  to  offer  for  sale  but 
once  any  property  upon  which  such  tax  is  a  lien.  Upon  such  direction,  the  collector, 
after  offering  the  property  for  sale  once,  and  there  being  no  purchaser  in  good  faith, 
must  make  out  and  deliver  to  the  Controller  a  certified  copy  of  the  entries  upon  the 
delinquent  list  relative  to  such  tax;  and  the  Tax  Collector  or  the  Controller,  in  case  the 
Tax  Collector  refuses  or  neglects  for  fifteen  days  after  being  directed  to  bring  suit  for 
collection  by  the  Controller,  may  proceed,  by  civil  action  in  the  proper  Court,  and  in  the 
name  of  the  people  of  the  State  of  California,  to  collect  such  tax  and  costs.' 

"The  next  section  provides  for  a  form  of  complaint  for  the  issue  of  a  writ  of  attach- 
ment, and  for  ten  per  cent  counsel  fees. 

"  It  will  be  seen  that  the  control  of  such  suits  was  in  the  hands  of  either  the  collector 
or  Controller,  and  that  no  suit  could  be  begun  until  the  property  had  been  offered  once 
for  sale. 

"It  must  also  be  remembered  that  the  whole  delinquent  property  must  be  offered  for 
sale  within  four  weeks  after  the  first  publication  of  the  sale. 


"In  -  the  several  collectors   had   published   tin-  delinquent    lists,  I    made  ;m 

order  directing  each  collector  to  offer  the  railroad  property  bui  onoe  and  H 

there  were  do  Didders  i<>  \\  ithdraw  tin-  property  from  sale. 
"In  the  meantime  a  stockholder  in  the  Central  and  Southern  I 'untie  Kuilnmd  Com 
an  alleged  resident  of  New  Yon  the  District  Court  of  the 

united  Stat  t  each  colleotor  to  enjoin  him  from  offering  the  property  of  said 

aniea  for  sale. 
"After  the  time  had  elapsed  for  the  collector  to  offer  the  property  tor  sale,  the 
injunctions  irere  dismissed,  but  thereby  tin-  jurisdiction  of  the  Controller  to  direct  the 
oing  of  actions  was  Lost 
••  I  made  like  orders  in  i^si.  for  the  withdrawal  <»f  the  railroad  property  from  tal< 

\  short  time  before  the  period  of  sueb  offering  the'eoinpanies  Mini 

«.ut  writ>  «>f  injunction  against  the  several  collectors.  These  suits  were  begun  in  the 
Superior  Courts  of  San  Francisco,  and,  of  course,  had  the  effect  to  delay  the  action  of 
the  collector  until  the  time  had  passed  within  which  he  could  act.  upon  a  bearing, 
Judge  Waymire  dismissed  the  suit  against  the  collector  of  the  county  of  Sacramento, 

led  that  the  other  writs  would  be  dismissed  in  time  for  the  collectors  to 

be  property  for  >ale. 
"After  the  writ  of  injunction  against  the  collector  of  Sacramento  county  had  been 

vacated,  and  he  was  about  to  otter  the  property  of  t  he  <  entral  Pacific  Railroad  <  ompany 
lie    for   taxes    for    ISM.  the  attorney    for   the    railroad    company    went    to    Alameda 

County,  and  obtained  from  Judge  Green,  of  the  superior  Court,  a  writ  of  prohibition 
against  the  collector,  prohibiting  him  from  proceeding;  with  the  sale. 

■  the  reason,  therefore,  that  the  railroad  companies,  hv  the  machinery  of  law,  pre- 
vented the  accruing  of  the  right  «>f  the  t  !ont  roller  to  sue,  1  have  been  onable  to  collect 

the  taxes,  hoth  of  Inland   1881. 

I  showed  before,  if  the  Controller  had  heen  permitted  to  sue,  the  suits  would 
have  heen  under  his  control,  and  the  means  to  enforce  the  action  would  have  been 
found  in  tin-  ten  per  cent  counsel  fees  to  be  paid  by  the  defendants. 

-  Inthe  session  of  1880  an  Act  was  passed  by  the  Legislature  providing  that  in  an  action 
in  any  county  for  the  collection  of  delinquent  taxes,  the  county  may  sue  in  its 
Own  name  for  the 'recovery  of  the  taxes,  whether  it  be  for  counts  or  (state  purposes,  or 
either  of  them. 

•  in  the  summer  of  1882,  I  received  advices  that  the  railroad  companies  were  offering 
to  compromise  their  taxes  by  paying  into  the  county  treasuries  60  per  cent  of  the 
inc.  and  that  many  of  the  Boards  Of  Supervisors  \\  ere  contemplating  accepting 
such  offers.  No  law  could  be  found  authorizing  directly  such  compromise.  Moreover, 
the  dread  that  the  State  would  insist  on  the  county  paying  to  the  State  the  whole  of  tin- 
State  taxes  due.  doubtless  deterred  the  Board  from  accepting  the  oiler. 

"Another  plan,  however,  was  adopted.  The  Supervisors  of  several  of  the  counties 
directed  the  District  Attorneys  to  begin  action  under  t he  Act  of  1880,  against  the  com- 
panies for  taxes  due  In  1H80  and  1881.  Suits  were  begun  in  Sacramento.  Merced.  Kern. 
Yolo,  and  El  Dorado  Counties.  The  Supervisors  of  said  counties  directed  the  District 
Attorneys  to  compromise  the  suits  by  accepting  60  per  cent  of  the  taxes  due,  and 
allowing  judgment  to  be  entered  for  that  amount,  the  companies  paying  the  amount  of 
the  judgment  into  the  County  Treasury. 

"In  the  case  of  the  County  of  San  Mateo  against  the  Southern  Pacific  Railroad  Com- 
pany, for  the  collection  of  State  and  county  taxes  for  the  year  1881,  a  decision  has 
recently  heen  filed  by  Justice  Field,  of  the  Circuit  Court  of  the  United  States,  wherein 
it  is  decided  that  the  Constitution  of  this  State  is  unconstitutional  in  so  far  as  it  pro- 
vides for  the  present  mode  of  assessment  of  railroads  hv  the  State  Hoard  of  Equalization. 
If  this  decision  is  sustained  by  the  Supreme  Court  of  the  United  States,  the  State  Con- 
stitution will  have  to  be  amended  in  order  to  assess  the  various  railroads  of  the  State. 

"Pending  the  decision  of  the  cases  carriea  to  the  Supreme  Court  <>f  the  United  states, 
I  earnestly  recommend  that  a  different  system  of  collecting  the  tax  from  railroad 
companies  should  be  adopted.  The  law  requires  the  state  Hoard  of  Equalisation  to 
apportion  the  tax  among  the  counties  in  the  ratio  that  the  number  of  miles  of  rail- 
road in  the  county  bears  to  the  whole  number  of  miles  of  the  road  in  the  State;  to 
make  a  statement  of  the  amount  apportioned,  with  a  description  of  the  track  and  right 
of  way  in  the  county;  this  statement  to  be  entered  on  the  assessment  book  verbatim. 
In  the  event  of  the  taxes  upon  the  railroad  property  becoming  delinquent,  there  is  no 

E revision  how  the  Tax  Collector  shall  sell,  and  lie  o'ffers  the  property  in  like  manner  as 
e  does  real  estate.     The  purchaser  would  take  such   portion  <>f  the  road  as  might  be  in 
lunty,  but  his  relation  to  the  company  is  not  determined,  and  being  so  indefinite, 
must   involve  him  in  litigation.     The  plan  winch   I    propose,  and  which  I  think  is  per- 
sible,  is  as  follows: 
'    The  State  Board  of  Equalization  shall  assess  the  franchise,  roadway,  roadbed, 
rails,  and  rolling  stock  of  railroads  Operated  in  more  than  one  county. 

"Second— The  Board  shall  apportion  such  assessment  among  tne  several  counties 
entitled  thereto  in  the  ratio  as  is  at  present  prescribed. 

"Third  The  Board  shall  make  an  entry  of  such  assessment,  describing  the  road  suffi- 
ciently well  to  identify  it.  and  the  apportionment  of  the  same,  in  a  book  to  be  called  the 
Assessment  Book  of  the  state  Board  <>f  Equalisation. 

■rth  Sin h  hook  shall  then  be  transmitted  to  the  Controller,  who  at  the  proper 
time  (or  such  duty  may  devolve  upon  the  Board,  as  at  present)  shall  notify  the  Board  of 


—    6    — 

Supervisors  of  the  amount  of  assessment  apportioned  to  the  county,  as  a  basis  for 
county  taxation. 

"Fifth— The  Controller  shall  calculate,  and  carry  into  a  column,  in  the  book,  the 
amount  of  taxes  due  the  State. 

"Sixth — As  soon  as  the  rate  of  county  tax  is  fixed  by  the  Board  of  Supervisors,  the 
Auditor  of  the  county  shall  notify  the  Controller  of  such  rate. 

"Seventh — The  Controller  shall  then  calculate  the  amount  due  the  county,  and  carry 
the  amount  into  a  column  prepared  for  the  purpose. 

"Eighth— -Each  railroad  company  must  settle  with  the  Controller  for  its  taxes,  and  pay 
the  amount  into  the  State  Treasurv. 

"Ninth — The  State  Controller  and  Treasurer  shall  credit  each  county  with  the  amount 
due  the  county  on  account  of  taxes  paid  by  the  railroad  companies,  and  notify  the 
County  Treasurer  thereof. 

"Tenth— In  the  event  of  any  railroad  company  failing  to  pay  its  taxes,  the  Controller 
to  have  authority  to  prosecute  an  action  for  the  State  tax  and  the  county  taxes  due,  in 
one  suit,  prescribing  the  form  of  complaint  so  that  there  shall  be  no  failure  for  want  of 
form. 

"As  railroads  operated  in  more  than  one  county  are  assessed  as  a  whole,  it  does  not 
appear  to  me  that  the  interests  of  the  State  are  best  subserved  by  dividing  the  collection 
of  the  tax  into  as  many  parts  as  there  are  counties  through  which  the  road  passes. 

"I  think  that  the  plan  of  placing  the  collection  of  taxes  upon  railroads,  assessed  by 
the  State  Board  of  Equalization,  under  one  authority,  is  one  that  will  commend  itself. 
I  trust  that  the  Legislature  will  give  my  suggestions  consideration." 

Statements  Nos.  3  and  4  in  Appendix  hereof,  show  the  unpaid 
taxes  of  1882  and  1883,  upon  the  Southern  Pacific  and  Central  Pacific 
systems  of  railroads,  except  as  paid  to  Attorney-General  Marshall,  as 
hereinafter  more  particularly  mentioned. 

By  State  Controller  Dunn's  report  for  the  thirty-fourth  and  thirty- 
fifth  fiscal  years,  it  appears  (page  24)  that  upon  February  12,  1884, 
there  was  due  and  remaining  unpaid  for  former  years  to  the  State  of 
California  and  the  several  counties  from  the  Central  Pacific  and 
Southern  Pacific  systems  of  railroads,  the  sum  of  $2,730,303  39.  (This 
sum  includes  all  penalties,  interest,  and  costs  up  to  that  date.)  Upon 
this  subject  the  Controller  in  his  report  states: 

"For  the  year  1883,  with  the  single  exception  of  the  North  Pacific  Coast  Railway, 
every  railroad  in.  the  State,  other  than  the  Central  and  Southern  Pacific  systems,  paid 
its  taxes  in  full;  and  in  addition  the  Central  Pacific  paid  in  full  for  that  year  upon  these 
branches:  Amador  branch,  Sacramento  and  Placerville,  Vaca  Valley  and  Clear  Lake, 
and  the  Santa  Cruz  Railroad  Company  (owned  by  the  Pacific  Improvement  Company), 
amounting,  for  State  purposes,  to  $3,697  68,  leaving  a  delinquency  against  the  Central 
and  Southern  Pacific  systems  for  State  purposes,  for  that  year  of  $178,423,  and  for  State 
and  county  purposes,  $555,628  46,  on  the  face  of  the  tax.  To  this  must  be  added  5  per 
cent  penalty,  2  per  cent  per  month  interest,  together  with  costs  and  attorney's  fees. 

"It  is  unnecessary  for  me  to  recount  the  struggles  made  by  the  State  in  earnest 
endeavors  to  collect  these  taxes.  It  is  historv  that  must  be  fresh  in  the  mind  of  every 
one.  Nor  is  it  necessary  here  to  recapitulate  the  various  proposals  put  forward  by  these 
corporations,  in  the  way  of  propositions  to  evade  the  payment  of  their  taxes. 

"Transactions  called  compromises  have  been  entered  into  between  these  corporations 
and  certain  officials,  whereby  a  sum  less  than  that  due  has  been  accepted  as  payment 
of  the  taxes  levied.  But  I  have  refused  to  accept  the  payments  thus  made.  I  did  so 
because  I  believed  that,  as  an  officer  of  the  State,  I  had  no  right  to  accept  less  than  the 
whole  amount  due  the  State. 

"Acting  upon  this  conviction,  I  notified  the  Treasurers  of  the  various  counties 
interested  that  this  office  would  not  make  settlements  of  these  taxes  for  less  than  the 
full  amount  due.  I  also  advised  the  Auditor  and  Treasurer  of  Contra  Costa  County  to 
refuse  to  accept  the  taxes  tendered  them  by  the  Attorney-General,  who  thereupon  began 
suits  to  compel  acceptance.  At  my  instance,  Hon.  W.  W.  Foote  represented  the  Contra 
Costa  officials  in  the  Courts;  the  case  is  as  yet  undecided.  The  heavy  hand  of  the  law 
is  laid  upon  the  house  and  home  of  the  farmer,  and  the  owner  of  city  and  town  home- 
steads, for  delinquency,  and  the  property  is  sold  at  tax  sale;  and  is  there  any  good 
reason  why  railroad  property  should  be  exempted  from  the  severe  penalties  imposed  upon 
other  classes  of  property  for  delinquency?  Is  it  of  loftier  or  holier  character  than  the 
homes  and  firesides  of  families?  Let  the  certainty  be  established  that  legal  clouds  will 
fall  upon  the  title  to  this  class  of  property  through  sale  on  account  of  delinquency,  and 
that  redemption  profits  such  as  accrue  to  purchasers  of  other  kinds  of  property  will 
ensue,  and  railroad  delinquencv  and  obstinacy  will  end  together. 

"  I  heartily  concur  in  the  recommendation  of  my  predecessor  that  the  commencement 
and  control  of  all  suits  against  railroad  corporations  for  taxes  be  put  in  the  hands  of  the 
Controller. 


•The  attorney's  fees  provided  for  by  law  air  ample,  that  laying  the  state  against  any 
expense  whatever,  ami  the  great  time,  labor,  ami  careful  research  required  in  the  prepara- 
tion and  nresentation  of  these  cases  will  occupy  more  time  than  can  1..-  devoted  to  them 
by  officials  haying  all  the  other  great  interests  of  the  State  to  protect." 

The  Centra]  Pacific  and  Southern  Pacific  Railroad  systems  were  also 
assessed  for  tin1  taxes  of  1884.  I  have  tabulated  the  mileage,  assessed 
value  per  mile,  number  of  miles  in  the  State  and  each  county,  total 
assessment  for  State  and  in  each  county,  the  amount  of  tax  levied  for 
the  State  and  each  county,  the  amount  paid,  and  the  several  amounts 
delinquent,  which  tabulation  appears  in  the  Appendix  hereof  as  state- 
ment No.  5. 

The  Controller,  Hon.  .lohn  1'.  Dunn,  in  his  report  for  tin-  thirty-sixth 
and  thirty-seventh  fiscal  years  (page  24),  says: 

shown  hy  my  last  hiennial  report,  there  was  due  at  that  time  from  the  Central 

and  Southern    1'aeiiic  railroads  and  branches,  for  the  years  1880,  1881,  and  1882;  $1,029,- 

this amount  there  was  paid  to  Attorneys Jeneral  Marshall,  and  by  him  paid 

to  the  State  ami  to  various  Oounty  Treasurers  (in  the  way  of  partial  pavment's).  the  sum 

of  $470,476  08,  besides  other  settlements,  which,  added  to  this,  leaves  unpaid  for  theee 

-  the  sum  of  $416,252  28,  as  shown  by  reports  on  file  in  this  otlice. 

1889  the  amount   delinquent  was  $555,628  46,  of  which  there  has  been  paid  $333,- 
577  1  '•.  leaving  vet  unpaid  $222,251  33. 

1884  the  amount  was  $653,373  12,  of  which  $329,520  63  has  been  paid,  leaving  yet 
due  $323,852  49." 

The  following  exhibit  shows  in  detail  the  amounts  paid  (as  already 
given)  into  the  State  Treasury  by  the  Attorney-General,  E.  C.  Marshall, 
from  the  several  roads,  and  for  the  years  named,  together  with  the 
amount  that  thereby  was  apportioned  to  the  respective  funds  to  which 
tin-  moneys  belonged: 

Amount  of  Delinquent  State  and  County  Taxes  Paid  into  the  State  Treasury  June  19,  1886, 
by  E.  C.  Marshall,  Attorney-General. 


Names  of  Railroads. 

Taxes  of  1880. 

Taxes  of  1881. 

Taxes  of  1882. 

Taxes  of  1883. 

Taxes  of  188-1. 

California  Pacific  Railroad. 

'  $1,985  "\2 
3,053  57 

2,811  85 

~27,239"99 

"$2,i66"09 
3,505  56 

2,793  77 

~27,755~64 

$15,580  56 
17,373  13 
6,044  81 

2,453  22 
125,806  31 
166,119  10 

$14,172  09 

15,646  93 

5,295  80 

Northern  Railway ... 

$1,415  50 
2,658  16 

1,662  15 

"28,778  "45 

San  Pablo  and  Tulare  R.R.. 

Stockton  and  Copperopolis 

Railroad 

Southern  Pacific  llailroad.. 
Central  Pacific  Railroad 

124,720  81 
169,685  00 

Totals 

$35,090  53 

$36,155  06 

$34,514  26 

$333,377  13 

$329,520  63 

RECAPITULATION. 

Taxes  1880. ._ $35,090  53 

Taxes  1881 36155  06 

Taxes  1882 34,514  26 

Taxes  1883 333,377  13 

Taxes  1884 329,520  63 

,  Total. $768,657  61 

I/ess  express  charges  from  San  Francisco  to  state  Treasury 384  36 

amount  paid  State  Treasurer $768,273  25 

rB.— Page  twenty-live.  Controller's  report,  thirty-sixth  and  thirty-seventh  fiscal 

\ear>. 


The  Controller  further  says  (page  25): 

"  In  this  connection,  I  desire  to  repeat  the  following  from  my  last  biennial  report:     , 

" '  It  is  unnecessary  for  me  to  recount  the  struggles  made  by  the  State  in  earnest 
endeavors  to  collect  these  taxes.  It  is  history  that  must  be  fresh  in  the  mind  of  every- 
one. Nor  is  it  necessary  here  to  recapitulate  the  various  proposals  put  forward  by  these 
corporations  in  the  wav  of  propositions  to  evade  the  payment  of  their  taxes. 

" '  Transactions  called  compromises  have  been  entered  into  between  these  corporations 
and  certain  officials,  whereby  a  sum  less  than  that  due  has  been  accepted  as  payment 
of  the  taxes  levied.  But  I  have  refused  to  accept  the  payments  thus  made.  I  did  so 
because  I  believed  that  as  an  officer  of  the  State  I  had  no  right  to  accept  less  than  the 
whole  amount  due  the  State.' 

"  It  has  been  asserted  and  insisted  by  the  Attorney-General  and  the  attorneys  for  these 
railroad  companies  that  the  payments  made  by  them  to  him  were  payments  on 
account,  but  there  was  nothing  in  the  records  of  the  Court  (at  the  time  these  partial 
payments  were  made)  to  show  that  the  rights  of  the  State  and  the  several  counties  to 
collect  the  balance  due  were  protected.  The  records  themselves  are  untrue,  and  a  mere 
examination  of  them  will  show  the  deception  practiced. 

"  Before  the  committee  of  the  Assembly  of  the  extra  session  of  1884,  constituted  to 
investigate  and  report  upon  the  character  of  the  Attorney-General's  actions  in  relation 
to  these  railroad  tax  matters,  Mr.  Marshall  stated  that  he  had  a  stipulation  in  the  case 
fully  protecting  the  rights  of  the  State,  yet  when  called  upon  by  the  committee  to 
produce  it,  Mr.  Marshall  stated  that  he  had  such  a  stipulation,  but  was  unable  to  find  it. 
The  attorney  for  the  railroad  stated  that  no  such  stipulation  existed,  but  that  he  would 
give  such  an  one.  Subsequently  a  piece  of  paper,  purporting  to  be  a  stipulation,  was 
presented  to  the  committee  by  the  Attorney-General.  This  document  was  worthless, 
but  its  worthless  character  was  not  discovered  by  the  committee.  Some  months  after- 
wards, however,  this  office  discovered  it  and  (in  a  letter  addressed  to  the  Attorney-Gen- 
eral on  November  3,  1885)  exposed  the  deception  practiced  upon  the  committee.  Yet 
nothing  was  done  by  that  official  either  to  correct  the  record  or  to  secure  such  a  stipula- 
tion as  would  protect  the  rights  of  the  State.  Afterwards  John  Rooney,  Esq.,  of  this 
county  brought  an  action  to  compel  the  Attorney-General  to  pay,  the  Controller  to  cer- 
tify, and  the  State  Treasurer  to  receive  into  the  State  Treasury,  the  partial  payments  the 
Attorney-General  had  accepted  from  the  railroad  companies.  And  up  to  this  time  no  stip- 
ulation bad  been  placed  on  file,  and  no  stipulation  is  of  any  value  until  it  is  placed  on 
file.  But  after  the  Rooney  case  brought  the  matter  before  the  Supreme  Court  of  the 
State,  the  Attorney-General  did  file  a  stipulation  in  sixty -three  cases  covering  taxes  for 
1881  and  1882. 

"Again,  in  the  cases  for  railroad  taxes  for  1884,  wherein  the  Attorney-General  accepted 
50  per  cent  of  the  face  of  the  amount  due,  the  findings  of  the  Court  show  that  the 
State  Board  of  Equalization  assessed  the  fences  along  the  lines  of  the  roads,  and  the 
distance  across  the  bay  of  San  Francisco— a  distance  of  four  miles — as  four  miles  of  the 
railroad.  The  State  Board  of  Equalization  did  not  assess  either  the  fences  along  the  lines 
of  the  railroads  nor  the  distance  across  the  bay  of  San  Francisco.  No  testimony  was 
introduced  on  the  trial  to  show  that  such  assessments  had  been  made.  And  yet,  in  the 
face  of  this  fact,  the  Attorney-General  permitted  this  record  to  be  made  a  part  of  the 
findings  of  the  Court.  It  is  a  significant  fact,  in  this  connection,  that  the  decision 
rendered  against  this  State  by  the  Supreme  Court  of  the  United  States  in  a  similar 
railroad  tax  case,  was  based  upon  the  fact  that  the  findings  showed  that  the  (former) 
State  Board  of  Equalization  had  assessed  the  fences  along  the  lines  of  the  roads — thus 
putting  these  cases  in  the  identical  condition  of  those  already  decided  against  the  State 
by  the  Supreme  Court  of  the  United  States,  and  rendering  it  worse  than  useless  to  appeal 
them.  In  a  letter  addressed  to  the  Attorney-General,  on  the  18th  of  last  June,  I  called 
his  special  attention  to  the  false  condition  of  the  record.  And  during  the  last  two 
months,  I  examined  the  records  and  found  them  still  in  the  same  condition,  as  they 
probably  are  yet. 

"  For  some  time  the  Attorney-General  claimed  to  have  in  his  possession  a  large  sum  of 
money  paid  him  by  certain  railroad  companies  as  partial  payment  of  taxes  due.  In  a 
letter  I  addressed  him  on  November  3,  1885,  and  at  other  times,  I  asked  him  to  bring  an 
action  in  the  Supreme  Court  to  have  the  question  determined  as  to  my  authority  to 
receive  these  so-called  payments  on  account,  but  he  refused  to  do  so.  I  also  asked  from 
him  a  statement  showing  the  amount  received  from  each  railroad,  the  year  for  which  it 
was  paid,  the  amount  for  State,  and  the  amount  for  county  purposes.  This  was 
absolutely  essential  to  me  in  order  that  the  money  might  be  properly  apportioned  to  the 
various  funds.    Yet  he  refused  to  furnish  me  the  information. 

"  The  Supreme  Court,  in  the  Rooney  case,  decided  that  the  United  States  Circuit  Court, 
being  a  Court  of  competent  jurisdiction,  having  ordered  the  Attorney-General  to  receive 
the  money  from  the  railroad  companies,  it  would  not  review  the  decision,  and  ordered 
the  Controller  to  certify  it  into  the  treasury.  But  it  did  not  determine  either  the  right 
of  the  Attorney-General  to  compromise  taxes  or  decide  the  question  as  to  his  right  to 
receive  taxes  on  account.  Neither  did  it  determine  the  question  as  to  whether  payments 
made  were  partial  or,  under  the  condition  of  the  records,  were  in  full  satisfaction. 

"It  is  scarcely  necessary  for  me  to  recall  to  you  the  earnest  efforts  made,  through  your 
office  and  mine,  to  secure  a  full  hearing  of  the  issues  involved  in  the  right  of  the  State 
to  tax  railroads  under  the  present  system.    Suffice  it  to  say,  every  effort  of  the  railroad 


—   9   — 

attorneys  has  been  exerted  to  prevent   t  >n  lifinjr  hear.l  •  rita.    Your 

efforts  culminating  tn  an  exhaustive  Letter  to  the  8upreme  Court  of  the  i  nited  States, 
bave  been  earnest  and  effective    In  thai  letter,  under  date  of  November  25,  1886,  you 
■  ■art  to  advance  those  cases  upon  the  calendar,  and  hear  and  determine 
An  early    hearing   was  therehy   had;  yet    your  struggles,  like  those  Of  all 
a  who  bave  earnestly  sought  to  secure  a  full  hearing  of  the  issues  Involved,  irere 
doomed  to  defeat     in  the  San  Mateo  County  ease  nothing  was  Involved  but  the  clean' 
i  deral  question  of  the  right  of  the  State  to  tax  corporations,  under  its  Constitution, 
th  that  point  decided,  nothing  remained  for  decision  out -id.-  of  <>■  inrta. 

••It  had  been  heard  In  L882  by  the  United  States  Supreme  Court,  was  Hi 
on  the  calendar,  had  been  argued,  and  was  ready  tor  decision,     it  vrai  selected  as  a  test 
The  railroad  company  secured   i   postponement   of  that  decision.    They  con- 
stantly declared  their  an\ii'i\  for  an  early  decision,  and  just  as  constantly  intef] 

ble  obstacle  against  a  decision  being  rendered.    They  Deed  every  endeavor 
t.>  bave  that  case  dismissed,  failing  in  which,  they  drove  the  attorneys  for  tin- state — 
9.  Rhodes  and  Barstow    out  of  the  <  in  evidence  of  the  virulent  hostility 

U-.C.1  to  thwart  the  efforts  upon  the  part  of  State  offlcere  to  have  the  ease  beard,  could 
anything  more  despicable  be  presented  than  the  history  of  that  oase,  ai  shown  in  the 
I  the  officials  of  San  Mateo  County,  in  abetting  the  railroad  company  In  having 
that  rase  dismissed,  as  is  seen  by  the  following  affidavits:    *    *    *" 

Before  the  moneys  were  paid  into  the  State  Treasury  by  Attorney- 

Greneral  Marshall,  as  specified  on  page  7,  there  was,  on  the  10th  day 
of  November,  1885,  an  action  commenced  in  the  Supreme  Court  of  the 
State  of  California  by  John  Rooney  against  Attorney-General  Marshall 
and  State  Controller  Dunn  (69  Cal.  647)  for  writ  of  mandate  compelling 
Baid  Dunn  to  certify  into  the  State  Treasury  the  moneys  collected 
by  said  B.  C.  Marshall  from  the  railroad  companies.  In  order  to  fully 
explain  the  facts  in  that  case,  I  here  insert  exhibits  A  and  B,  which 
were  offered  and  received  as  evidence  in  said  cause,  as  follows: 


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—  13  — 

The  Supreme  Court,  in  t he  above  mentioned  action  entitled  John 
Rooncv.  petitioner,  \>.  pidward  C.  Marshall.  Attorney-General,  and  in 
a  similar  proceeding  brought  by  the  County  of  San  Mateo,  petitioner, 
against  D.  J.  Oullahan,  State  Treasurer,  beld  and  decided  as  follows: 
[Opinion  by  Mr.  Justice  Uoss,  concurred  in  by  Chief  Justice  Morrison, 
and  by  Justices  Mvrick.  Sharpstein,  McKinstry,  and  McKee.  Filed 
May  28,  L886;  reported  m  69  Cal.  647]. 

•These  casrs  will  be  considered  together.    Each  Lean  application  for  a  writ  of  man- 
directed  to  the  respondent!  In  l^eir  official  capacity,  requiring  of  them  the  per- 
formance of  certain  acts  demanded  of  them  by  the  law  If  the  money  In  question  b  a 
ol  the  public  revenue.    The  money  is  now  in  the  bands  of  the  Attorney  General 
of  the  State,  and  32  98  in  amount    01  this  sum  1140,686  20  was  received  by  bim 

in. in  the  defendants  In  certain  actions  Instituted  by  certain  counties  of  the  State  against 
certain  railroad  corporations  for  the  recovery  of  delinquent  taxes  for  tin-  fiscal  years 
1880-81,  1881-82,  ami  L882  B8;  the  remaining  $862,897  73  was  received  by  bim  from  the 
defendants  in  certain  actions  Instituted  by  the  State  against  the  same  corporation^  for 
delinquent  taxes  fOT  the  fiscal  years  1883-84  and  1884-85.  In  the  first  class  of  cases  the 
suits  wen-  brought  under  the  Act  of  the  Legislature  approved  April  2:{,  1880,  authorising 
any  county  or  city  and  county,  where  taxes  are  delinquent,  to  sue  in  its  own  nan 
the  recovery  t  hereof,  'whether  the  same  he  tor  county,  or  for  city  and  county,  and  State 
purposes,  or  taxes,  or  either  of  them.1    (State.  1880.  p.  136.)    [n  toe  second  class  of  cases 

the  suits  weri'  hronght  under  that    provision  of  the  1'olit  ical  Code,  as  amended  i: 

declaring  thai  "after  the  first  Monday  in  February  of  each  year  the  Controller  must 

bring  an  action,  in  the  proper  Court,  in  the  name  of  the  people  of  the  State  of  Califor- 
nia, to  collect  the  delinquent  taxes  upon  the  property  assessed  by  the  State  Board  of 
Equalisation;  Buch  suit  must  be  for  tne  taxes  due  the  State,  and  all  the  counties,  and 
cities  and  counties,  upon  property  assessed  by  the  Board  of  Equalization,  ami  appearing 
delinquent  upon  the  duplicate  record  of  apportionment  of  railway  assessments.  The 
demands  for  State  and  county  and  city  and  county  taxes  may  be  united  in  one  action.' 

(  l'ol.  Code.  Sec.  9670.) 

"  Pursuant  to  statute,  the  actions  embraced  within  the  first  class  above  alluded  to— in 
number  sixty-three    were  commenced  by  the  District  Attorneys  of  the  respective  coun- 

i  the  Superior  Court  of  their  respective  counties.  They  were  all  subsequently 
transferred  to  the  circuit  Court  of  the  United  States,  and  there  came  on  regularly  for 
trial— the  Attorney-General  appearing  for  the  plaintiffs— and  after  trial  were  submitted 
to  the  Court  for  decision.  On  the  28th  of  February,  1884,  the  Court  ordered  that  judg- 
ment be  entered  in  favor  of  the  defendants  in  the  actions,  but  before  judgment  was 
so  entered,  and  on  the  next  day.  February  29,  1884,  stipulation  was  presented  to  the 
Court  in  forty-one  of  said  sixty-three  cases,  signed  by  the  attorney  for  the  defendants, 
and  hy  the  Attorney-General  of  the  State  for  the  plaintiffs,  agreeing  in  effect  that, 
notwithstanding  the*  decision  of  the  Court  before  announced,  that  judgment  should 
be  entered  in  favor  of  the  plaintiff  in  the  respective  actions  for  the  face  of  the  taxes. 
•And  the  circuit  Court  thereupon  and  upon  the  oral  consent  of  the  attorneys  for  the 

tive  parties  vacated  the  order  theretofore  entered  for  judgment  in  favor  of  the 

lants,  and  made  and  entered  a  iudgment  in  favor  of  the  respective  plaintiffs  in 
said  forty-one  actions  for  the  face  of  the  taxes;  and  therein  apportioned  the  amounts  of 
the  respective  sums  between  the  State  and  the  respective  counties.  A  similar  stipula- 
tion and  judgment  was  entered  in  each  of  the  remaining  twenty-two  cases  of  the 
sixty-three  originally  commenced  by  the  District  Attorneys.  The  amounts  of  the  judg- 
ments thus  rendered  and  entered  by  the  Circuit  Court  of  the  United  States  were 
subsequently  paid  to  the  Attorney-General  of  the  State  by  the  defendants  in  the  actions, 
and  a  part  of  which  is  the  aforesaid  sum  of  $140,685  10. 

the  actions  embraced  within  the  second  class  already  alluded  to,  there  were  pend- 
ing on  the  29th  of  September,  1884,  in  the  Circuit  Court  of  the  United  States  for 
California,  six  certain  eases  prosecuted  by  the  people  of  the  State  of  California  against 
the  railroad  corporations  tor  the  collection  of  delinquent  taxes  tor  the  fiscal  year  1883-84. 

ol  said  actions  was  originally  commenced  in  one  of  the  Superior  Courts  of  the 

State  hy  attorneys  employed  tor  that  purpose  by  the  state  Controller,  but  the  actions 

subsequently  transferred,  on  motion  of  t  he  "defendants  therein,  to  the  <  ircuit  Court. 

And  in  that  Court,  on  the  29th  of  September,  1884,  the  following  order  was  made  and 

entered  in  each  of  them: 

Whereas,  the  defendant   in  the  above-entitled  action,  while  denying  all  liability 
upon  the  cause  of  action  stated  in  the  complaint,  pleaded  that  on  the  ninth  day  of 

November,  1883,  it  had  tendered  and  offered  to  pay  plaintiff  the  sum  of  $ ,  in  United 

coin,  in  part  payment  of  the  tax  claimed,  with  an  agreement  that  the  receipt 
of  said  sum  should  not  prejudice  the  plaintiff  in  any  legal  rights;  and  whereas,  the 
defendant  in  said  answer  averred  that  it  had  brought  said  sum  into  Court,  and  offered  the 
same  to  plaintiff,  and  subjected  the  said  sum  to  such  orders  or  judgments  as  the  <  lourt 
might  make  in  the  premises;  and  whereas,  of  the  sum  so  tendered  the  defendant  spe- 
cially tendered,  for  the  benefit  of  the  State,  and  on  the  amount  claimed  bv  the  State,  the 

sum  of  $ ,   and  on  account  of  the  various  countv  taxes  it  tendered  sums   as 

follows,  to  wit: 


—  14  — 

"'  For  the  county  of the  sum  of  $ (naming  the  several  counties  and 

the  several  amounts). 

" '  Now,  upon  motion  for  attorneys  for  plaintiff,  it  is  ordered  by  the  Court  that  the 
defendant,  within  five  days  from  the  date  hereof,  make  said  tender  good  by  paying  to 
Edward  C.  Marshall,  Attorney-General  of  the  State  of  California,  and  one  of  the  attor- 
neys for  plaintiff  herein,  the  said  sum  of  $ ,  United  States  gold  coin  (said  sum  being 

the  amount  alleged  to  have  been  tendered),  to  be  by  the  said  Marshall,  upon  the  receipt 
thereof,  paid  into  the  State  Treasury  of  the  State  of  California,  for  the  benefit  of  the 
State  of  California  and  of  the  counties  above  named,  and  in  the  respective  amounts 
above  specified;  and  it  is  further  ordered  that  neither  the  payment  nor  the  receipt  of 
said  sum  shall  prejudice  or  affect  any  right  of  either  party  to  this  action  to  maintain  or 
defend  it  as  to  the  balance  claimed  in  the  complaint.' 

"The  amounts  thus  ordered  to  be  paid  by  the  Circuit  Court  amounted  to  60  per 
cent  of  the  face  of  the  taxes,  and  aggregated  $333,377  10,  and  were  paid  to  the  Attorney- 
General  by  the  defendants  in  the  actions  within  the  five  days  mentioned  in  the  order. 
On  or  about  May  26,  1884,  the  Controller  substituted  Mr.  D.  M.  Delmas  for  the  attorneys 
originally  employed  by  him,  who  has  since  been  the  only  attorney  employed  by  the 
Controller.  Mr.  Delmas  did  not  consent  to  the  order  of  September  29th,  but  on  the  con- 
trary, at  all  times  resisted  it.  Subsequently,  in  each  of  said  six  cases,  final  judgment 
was  entered  for  the  defendants. 

"  Of  the  actions  embraced  within  the  second  class  first  herein  alluded  to,  there  were 
pending  on  the  16th  of  September,  1885,  in  the  Circuit  Court,  five  certain  other  cases 

Erosecuted  as  were  the  six  cases  last  referred  to,  and  in  which  similar  x>roceedings  were 
ad,  except  that  the  amount  ordered  to  be  paid  by  the  Circuit  Court  to  the  Attorney- 
General  by  the  respective  defendants,  and  which  was  accordingly  so  paid,  was  the  sum 
of  $329,520  63,  and  was  50  per  cent  of  the  face  of  the  taxes. 
"The  foregoing  are  substantially  the  facts  as  presented  by  the  findings. 
"It  is  quite  clear,  we  think,  that  unless  we  can  treat  the  judgments  of  the  Circuit  Court 
in  the  first  class  of  cases,  and  the  orders  of  that  Court  in  the  second  class  of  cases, 
directing  the  payments  of  the  respective  sums  of  money  as  void,  we  must  hold  the 
money  paid  by  virtue  of  them  to  the  Attorney-General  of  the  State  as  a  part  of  the 
public  revenue.  For  in  the  one  instance  it  was  paid  under  judgments,  and  in  the  other 
instance  under  orders  made  and  entered  by  the  Court  in  actions  regularly  pending  in  it, 
and  there  prosecuted  for  the  recovery  of  certain  sums  of  money,  to  a  person  who 
appeared  and  was  recognized  as,  and  adjudicated  to  be,  one  of  the  attorneys  for  the 
plaintiffs;  that  is  to  say,  the  Attorney-General  of  the  State.  The  jurisdiction  of  the 
Court  over  the  parties  and  subject-matter  is  not  questioned.  Manifestly,  therefore,  it 
cannot  be  held  that  any  judgment  or  order  made  by  that  Court,  directing  that  the 
plaintiff  recover  a  less  sum  than  that  claimed,  is  void.  And  not  being  void,  it  is  con- 
clusive upon  us.  Nor  can  we  consider  the  right  of  the  Attorney-General  to  appear  as 
attorney  for  the  people  in  the  actions  commenced  by  the  Controller.  The  Court  in 
which  the  cases  were  heard  decided  that  he  had  the  right  so  to  appear,  and  recognized 
him  as  such  attorney,  and  its  judgment  in  that  regard  is  as  binding  as  in  any  other. 
So,  too,  with  respect  to  the  stipulations  upon  which  the  judgments  in  the  one  class  of 
cases  and  the  orders  in  the  other  class  were  made  and  entered.  It  is  not  for  us  to  say 
that  they  were  insufficient  as  a  basis  upon  which  to  enter  the  judgments  and  orders. 
That  was  a  matter  for  the  Court  having  jurisdiction  of  the  case,  subject  to  correction  on 
appeal  if  error  was  committed. 

"We  have  therefore  the  case  of  an  attorney  who  has  received  certain  moneys  under 
judgments  and  orders  recovered  by  him  in  actions  he  was  prosecuting.  It  legally 
follows,  we  think,  that  the  money  so  received  is  the  property  of  those  whom  he  repre- 
sented in  receiving  it. 

"  Let  the  writs  issue  as  prayed  for  in  so  far  as  concerns  the  moneys  received  by  the 
Attorney-General  under  the  orders  made  in  the  cases  prosecuted  for  the  delinquent 
taxes  for  the  fiscal  years  1883-84  and  1884-85,  and  in  so  far  as  concerns  the  moneys  by  him 
received  for  the  State  under  the  judgments  rendered  in  the  actions  prosecuted  for  the 
delinquent  taxes  for  the  fiscal  years  1880-81, 1881-82,  and  1882-83." 

The  taxes  for  the  fiscal  years  mentioned  in  the  above  opinion  were 
due  and  payable  in  the  years  1880, 1881,  1882, 1883,  and  1884,  as  shown 
by  statements  1,  2,  3,  4,  and  5  of  Appendix  hereof. 

The  effect  of  the  said  decision  was  that  the  judgments  therein  referred 
to  were  held  not  void  and  that  it  was  the  duty  of  the  State  Controller 
to  certify  said  moneys  into  the  State  Treasury.  They  were  paid  in,  as 
set  forth  on  page  7  hereof. 


—  15  — 

RECAPITULATION. 

There  are  yet  due  and  unpaid  from  the  Southern  Pacific  and  Central 
Pacific  systems  of  reads,  after  giving  credit  for  all  suidh  of  money  paid 
in.  on  account  of  said  taxes,  the  following  Minis: 

State  and  count  v  taxes,  1880,  1881,  mm. I  LB89  -. $416,262  28 

Stan- and  county  taxes,  1883 222,26133 

■1  county  taxes,  1884 323,852  49 

Total. $962,366  10 

The  above  total  does  not  include  interest  or  penalties. 

If  the  agreed  judgments  entered  ID  the  United  States  Circuit  Court, 
in  the  cases  transferred  thereto,  in  reference  to  these  taxes,  and  tin;  set- 
tlement with  Attorney-General  Marshall  are  to  be  considered  as  binding 
and  conclusive,  it  is  questionable  whether  the  State  can  ever  recover 
any  portion  of  the  above  amount  of  delinquent  taxes  by  reassessment, 
for  it  cannot  be  said  that  the  assessments  were  so  void  that  the  Legis- 
lature could  of  right  direct  or  authorize  a  reassessment  for  those  years. 

I  have  nothing  to  add  regarding  Attorney-General  Marshall's  conduct 
in  those  cases;  the  statements  made  by  Controller  Dunn  in  his  official 
reports  regarding  said  litigation  are  a  sufficient  commentary  thereon. 

SECOND. 

Taxes  for  the  Years   1885  to  1887  Inclusive,  no   Part   of  Wiikii 

Has  Been  Paid. 

No  portion  of  the  taxes  of  1885,  1886,  and  1887,  against  the  Central 
Pacific  and  Southern  Pacific  systems  of  roads  operated  in  more  than 
one  county,  has  been  paid.  For  the  purpose  of  comparison  I  have 
prepared  tabulated  statements  showing  the  mileage,  assessed  value  per 
mile  in  the  respective  counties,  and  the  amount  of  State  and  county 
taxe3  levied  against  the  roads  for  the  years  above  mentioned  as  well  as 
for  the  years  subsequent  to  1887,  which  statements  are  numbered  from 
6  to  13,  inclusive,  in  the  Appendix  hereof. 

The  State  Controller,  in  his  report  for  the  thirty-eighth  and  thirty- 
ninth  fiscal  years,  page  25,  in  reference  to  the  taxes  previous  to  and 
including  the  year  1887,  declared: 

"For  all  these  years  [from  1880  to  1887,  inclusive]  the  Central  and  Southern  Pacific 
Railroad  Companies,  and  certain  branches  controlled  by  them,  have  refused,  and  still 
refuse,  to  nay  the  taxes  levied  upon  them  by  law,  and  the  very  large  amounts  thus  not 
collected  have  caused  serious  disarrangement  to  the  finances  of  the  State,  and  of  the 
several  counties  through  which  they  run.  The  total  amount  due  from  these  companies, 
representing  the  face  of  the  tax  from  1883  to  1887,  inclusive,  aggregates  $2,547,700  61. 

"This  statement  omits  the  amount  due  for  1880,  1881,  and  1882,  as  this  office  has  not 
the  data  for  ascertaining  the  exact  unpaid  amounts. 

"Actions  were  brought  to  recover  the  delinquent  taxes  for  all  these  years  [1880  to  1887, 
inclusive]  except  for  1887.  But  for  this  latter  year,  after  advising  with  the  Attorney- 
general  [Geo.  A.  Johnson],  none  were  begun. 

I  !m  history  of  these  railroad  tax  suits  is  one  presenting  deceit,  misrepresentation, 
and  false  and  fraudulent  records  upon  the  part  of  the  Central  and  Southern  Pacific  Com- 
panies. In  the  cases  of  1884  against  these  companies,  the  United  States  Circuit  Court 
findings  show  that  the  State  Board  of  Equalization  assessed  to  the  railroads  the  fences 
along  the  lines  of  the  roads,  and  also  the  distance  across  the  bay  of  San  Francisco,  a 
nice  of  four  miles  of  the  railroads. 

testimony  was  introduced  on  the  trial  to  prove  any  such  assessments.    The  State 

I  of  Equalization  did  not  assess  either  the  fences  or  the  distance  across  the  bay 

i    Francisco,  and  yet,  in    the  face    of    this    fact,    the    then    Attorney-General 

I ..  <     Marshall]  permitted  this  record  to  be  made  a  part  of  the  findings  of  the  Court. 


—  16  — 

"  It  is  a  significant  fact,  in  this  connection,  that  the  decision  rendered  against  the  State 
by  the  Supreme  Court  of  the  United  States  in  a  similar  railroad  tax  case,  was  based  upon 
the  fact  that  the  findings  showed  that  the  (former)  State  Board  of  Equalization  had 
assessed  the  fences  along  the  lines  of  the  roads— thus  putting  these  cases  in  the  identi- 
cal condition  of  those  already  decided  against  the  State  by  the  Supreme  Court  of  the 
United  States,  and  rendering  it  worse  than  useless  to  appeal  them. 

"In  a  letter  addressed  to  the  Attorney-General  [E.  C.  Marshall],  on  the  eighteenth  day 
of  June,  1886,  I  called  his  especial  attention  to  the  false  condition  of  the  record.  This 
false  and  fraudulent  record  was,  by  him,  allowed  to  remain  as  part  of  the  record,  without 
any  attempt  on  his  part,  so  far  as  I  am  aware,  to  correct  it,  even  after  his  attention  had 
been  called  to  it  by  myself  in  a  public  communication. 

"This  false  record  was  presented  to  the  United  States  Supreme  Court  as  .a  true  state- 
ment of  facts  in  the  case.  Of  course,  in  view  of  the  Supreme  Court's  previous  decision, 
there  could  be  but  one  result  to  an  issue  so  presented,  and  the  State  lost  her  cases. 

"In  my  last  report  I  predicted  this  result  in  the  following  language:  'The  false 
findings  m  the  United  States  Circuit  Court  must  be  corrected,  or  the  State  will  lose  every 
cent  of  the  taxes  shown  to  be  due.  This  office  is  powerless  to  accomplish  it,  as  the 
United  States  Circuit  Court  recognizes  only  the  Attorney-General  as  clothed  with  the 
right  to  control  the  cases.  Can  it  be  that  a  great  State  vested  with  all  the  attributes 
of  inherent  power  and  sovereignty  can  be  thus  pillaged  of  her  rights  without  the 
possibility  of  undoing  the  outrage?  ' 

"It  is  strange  that  the  great  State  of  California  has  been  debarred  by  these  companies 
from  presenting  to  the  Supreme  Court  of  the  United  States  for  adjudication  a  correct 
and  truthful  record  of  her  railroad  assessments. 

"The  present  head  of  the  law  department  of  these  railroad  companies  has  time  after- 
time  given  out  publicly  the  statement  that  he  was  only  too  anxious  to  submit  these 
cases  on  their  merits  to  the  Court  of  last  resort;  and  yet  the  department  over  which  he 
presides  has  resorted  to  the  use  of  false  and  fraudulent  records  to  mislead  the  Court, 
and  prevent  the  cases  from  being  heard  on  their  merits. 

"The  effect  of  this  successful  legal  chicanery  makes  itself  felt  severely  in  the  finances 
of  the  State  and  the  several  interested  counties,  the  total  amount  due  for  all  the  named 
years  being  the  large  sum  of  $2,547,700  61.  Of  this  amount  there  is  due  to  the  State  the 
sum  of  $946,765  81,  of  which  $556,615  44  is  due  to  the  General  Fund;  $316,199  59  to  the 
School  Fund;  $69,778  80  to  the  Interest  and  Sinking  Fund,  and  $4,171  98  to  the  State 
University  Fund. 

In  the  report  of  ex-Controller  Dunn  last  above  referred  to  it  is  stated: 
"Actions  were  brought  to  recover  the  delinquent  taxes  for  all  these 
years,  except  for  the  year  1887;  but  for  this  latter  year,  after  advising 
with  the  Attorney-General,  none  were  commenced." 

On  the  part  of  both  Mr.  Dunn  and  Mr.  Johnson,  the  then  Attorney- 
General,  such  non-action  has  proved,  in  my  judgment,  to  have  been  a 
mistake;  for  if  the  Controller  was  correct  in  his  conclusion  that 
Attorney-General  Marshall  had  not  presented  a  case  covering  the  facts, 
it  is  very  strange  that  when  another  Attorney-General  was  in  office 
the  Controller  should  have  deemed  it  unnecessary  to  bring  new  suits, 
by  which  the  facts  could  have  been  presented  as  he  claimed  they 
existed,  and  a  decision  had  on  the  merits.  I  presume,  however,  that 
Mr.  Dunn  had  reasons  which  in  his  judgment  warranted  him  in  pursu- 
ing this  course.  The  suits  were  eventually  brought  by  Attorney- 
General  Johnson,  as  hereinafter  set  out. 

I  am  informed  that  at  least  60  per  cent  of  the  taxes  for  1885  and 
1886  would  have  been  paid  into  the  State  Treasury  by  the  railroad 
companies  had  Mr.  Dunn  been  willing  to  certify  that  proportion  into 
the  State  Treasury  on  account  of  said  taxes,  but  I  understand  he  refused 
to  do  so. 

From  a  perusal  of  Controller  Dunn's  reports  I  would  infer  and 
it  is  fair  to  presume  that  during  the  latter  part  of  1884  and  the 
years  of  1885  and  1886  Mr.  Dunn  and  Mr.  Marshall  were  so  much 
taken  up  with  their  controversy  over  what  was  correct  procedure  in 
the  railroad  tax  matters  that  the  railroad  companies  were  practically 
undisturbed  and  were  not  pushed  in  due  season  for  the  taxes  of  1885 
and  1886. 


lUNIVERSIT  ' 

No  doubt  Mr.  Dunn   believed   In  -lit    and    that  it  was  for  the 

interests  of  the  State  net  to  receive  partial  payments  on  account 

of  railroad  taxes,  and  his  refusal  to  certify  such  moneys  int«.   the   State 

Treasury  was  probably  based  upon  the  idea  that  by  Bach  refusal  the 

companies    would    he    compelled    to    pay    the    lull    amount,  and    that  to 

■  t  less  thai!  the  full  amount  would  be  establishing  a  pn 
dent  permitting  the  companies  to  determine  for  themselves  the 
amount  of  taxes  they  would  pay  without  reference  to  any  tax  levy 
by  the  State.  On  the  other  hand,  Attorney-! Jeneral  Marshall  believed 
that  whatever  he  received  on  account  of  the  taxes  would  be  so  much 
gained  for  the  State,  and  that  the  stipulations  he  had  obtained  warranted 
him  taking  such  money,  the  same  to  be  considered  as  payments  on 
mt;  hut  unfortunately  Mr.  Marshall  allowed  judgments  to  be 
taken  against  the  State,  which  were  not  void,  and  also  allowed  judg- 
ments for  stipulated  amounts,  which  of  course  could  not  be  set  aside, 
whatever  the  rights  of  the  State  may  have  been,  which  fully  appears  in 
the  decision  of  the  Supreme  Court  in  Rooney  vs.  Marshall,  supra.  In 
my  opinion,  Mr.  Marshall,  as  Attorney-General,  was  overreached  in  the 
matter  of  railroad  tax  litigation. 

Taxes  of  1885. 

Suits  were  brought  by  the  People  of  the  State,  ex  rel.  Controller 
Dunn,  against  the  Central  Pacific  Railroad  and  other  companies,  to  re- 
cover the  taxes  of  1885.  The  cases  were  transferred  to  the  United  States 
Circuit  Court  for  the  Ninth  Circuit,  District  of  California,  and  judg- 
ments were  rendered  therein  against  the  State  in  all  the  cases;  stipula- 
tions were  signed  by  the  Attorney-General  that  four  of  the  cases  should 
abide  the  result  of  the  decision  of  the  Supreme  Court  of  the  United 
States  in  the  suit  of  the  People  vs.  Central  Pacific  Railroad  Company 
which  was  then  appealed.  This  was  unfortunate  for  the  State,  for  the 
point — assessment  of  a  Federal  franchise — involved  in  the  case  ap- 
pealed was  not  involved  in  the  four  cases  not  appealed.  The  judg- 
ment in  the  case  appealed  being  affirmed  by  the  Court  of  last  resort,  the 
four  cases  mentioned  were  also  affirmed  by  reason  of  said  stipulation. 
Judgment  was  thus  rendered  against  the  People  in  all  the  tax  suits  for 
that  year  (1885);  but  when  it  was  discovered  that  the  decision  of  the 
United  States  Supreme  Court  in  People  vs.  Central  Pacific  Railroad 
turned  upon  the  question  of  the  assessment  by  the  State  of  a  Federal 
franchise,  it  was  agreed  by  Attorney-General  Johnson  and  the  attorneys 
for  the  railroad  companies  that  the  judgment  entered  in  the  case  of  the 
People  vs.  San  Pablo  and  Tulare  Railroad  Company,  one  of  the  four 
cases,  should  be  set  aside  and  new  findings  drawn,  presenting  the 
question  whether  the  Constitution  of  this  State  conflicts  in  any 
particular  with  the  provisions  of  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States,  in  reference  to  the  taxation  of  rail- 
roads operated  in  more  than  one  county.  Such  findings  were  submitted 
and  judgment  was  entered  thereon  against  the  People,  by  Circuit  Judge 
Sawyer;  whereupon  Attorney-General  Johnson  sued  out  a  writ  of  error 
in  said  action  to  the  Supreme  Court  of  the  United  States,  which  action 
is  still  pending  before  that  Court.  The  railroad  company  here  con- 
sented to  set  aside  a  judgment  in  its  favor  in  the  San  Pablo  case  in 
2 


—  18  — 

order  to  present  a  case  which  would  presumably  test,  in  the  United 
States  Supreme  Court,  the  constitutionality  of  our  mode  of  taxation  of 
railroads. 

Taxes  of  1886. 

In  the  meantime  Attorney-General  Johnson  brought  actions  in  the 
name  of  the  People  against  the  Southern  and  Central  Pacific  Railroads, 
and  other  companies,  in  the  Superior  Court  of  the  City  and  County  of 
San  Francisco,  for  the  taxes  of  1886.  The  defendants  were  served; 
they  appeared,  and  filed  demurrers  on  various  grounds,  raising  tech- 
nical and  constitutional  objections.  After  argument,  Judge  Levy,  before 
whom  the  cases  were  heard,  sustained  the  demurrers,  and  the  Attorney- 
General,  instead  of  amending  the  complaints  to  cure  the  objections 
made  by  the  demurrers,  stood  on  the  demurrers,  and  appealed  to  the 
Supreme  Court  of  the  State  of  California,  where  the  cases  were  heard 
and  determined.  Decision  was  rendered  by  Mr.  Justice  Fox,  and  is 
reported  in  83  Cal.  393.  The  State  Supreme  Court  sustained  the  lower 
Court,  holding  that  the  form  of  complaint  used  was  not  good;  that  the 
statute  allowing  such  a.  form  of  complaint  was  unconstitutional  and 
was  a  special  enactment  prescribing  a  special  mode  of  practice.  This 
decision  was  rendered  a  few  days  preceding  the  time  that  the  case  of 
People  vs.  San  Pablo  and  Tulare  Railroad  Company  was  reached  for 
hearing  by  the  United  States  Supreme  Court,  and  upon  a  telegraphic 
communication  of  that  decision  to  Washington,  D.  C,  the  latter  Court 
declined  to  hear  the  case  because  of  our  Supreme  Court  refusing  to 
sustain  the  action  upon  the  form  of  complaint  adopted  for  the  recovery 
of  the  taxes  of  1886.  The  people  of  this  State  were  thereby  prevented 
from  obtaining  a  decision  of  the  Supreme  Court  of  the  United  States 
upon  the  question  of  conflict  of  our  Constitution  with  the  Federal  Con- 
stitution in  the  provisions  of  the  former  regarding  the  mode  of  taxa- 
tion of  railroads  operated  in  more  than  one  county.  Thus  by  either 
unforeseen  or  prearranged  circumstances,  the  people  of  this  State  have 
not  for  a  period  of  twelve  years  had  the  opportunity  of  presenting  to 
the  Supreme  Court  of  the  United  States  the  merits  of  our  Constitution 
in  reference  to  the  taxation  of  railroads  operated  in  more  than  one 
county;  and 'as  matter  of  fact  the  Supreme  Court  of  the  United  States, 
in  pursuance  of  an  invariable  rule  not  to  consider  Federal  constitu- 
tional questions  where  the  State  Supreme  Court  had  virtually  disposed 
of  the  matters  involved  upon  statutory  construction,  still  refuse  to 
take  up  or  pass  upon  the  case  of  the  People  vs.  San  Pablo  and  Tulare 
Railroad  Company,  pending  on  writ  of  error  in  that  Court,  because  of 
the  decision  of  our  Supreme  Court  in  the  case  reported  in  83  Cal.,  p. 
393,  affirming  Judge  Levy's  decision  as  to  the  informality  of  the 
complaints  filed  to  recover  the  taxes  of  1886. 

Taxes  of  1887. 

Some  two  weeks  before  assuming  my  official  duties  I  investigated 
the  form  of  complaint  which  had  been  passed  upon  by  the  Supreme 
Court  of  this  State  in  the  case  of  The  People  vs.  C.  P.  R.  R.  Co.,  83  Cal. 
393.  I  found  that  the  suits  brought  by  my  predecessor  for  taxes  of 
1887  were  upon  complaints  similar  in  form  to  those  adversely  passed 
upon  in  the  case  cited,  and  I  determined  that  a  new  form  of  complaint 


—  19  — 

should  be  adopted,  in  order  that  a  decision  of  the  Supreme  Court  of  fchifl 
State  might  l»«-  bad  upon  the  constitutional  provisions  of  this  State  in 
reference    l<»   the  assessment   of   railroads   operated    in    more    than    one 

ooonty,  without  being  hampered  by  technicalities  as  to  the  form  of  the 
pleading.  Accordingly,  three  days  before  taking  oflice,  I  had  n<  w 
amended  complaints  tiled  by  the  associate  counsel,  for  the  taxes  of  1887. 
were  briefed  and  submitted  to  the  Hon.  J.  P.  Hoge,  one  of 
the  Superior  Judges  of  the  City  and  County  of  San  Francisco,  hut  he 
died  before  passing  upon  the  demurrers  interposed  by  defendants.  His 
successor,  Judge  Hebbard,  heard  argument  upon  the  demurrers,  and, 
after  due  consideration,  overruled  them. 

The  trial  of  the  suits  for  these  taxes  was  commenced  before  Judge 
Hebbard  of  the  Superior  Court  of  the  City  and  County  of  San  Francisco, 
on  the  9th  day  of  January  1893,  and  will  be  taken  up  for  argument 
before  the  Court  on  the  19th  instant. 

The  Central  Pacific  Railroad  Company  and  the  Southern  Pacific 
Railroad  Company  defend  the  actions  on  the  ground  that  the  Federal 
franchise  was  included  in  the  assessment  for  the  taxes  of  1887;  the 
defense  in  the  suits  brought  against  the  other  roads,  four  in  number, 
being  that  the  provisions  of  the  State  Constitution  regarding  the  tax- 
ation of  railroads  operated  in  more  than  one  county  are  null  and  void, 
for  the  reason  that  there  is  no  provision  for  the  deduction  of  mortgages 
upon  said  roads. 

From  my  examination  of  these  questions  I  am  certain  that  the  pro- 
visions of  our  Constitution  upon  the  subject  of  railroad  taxation  are  not 
in  violation  of  the  Federal  Constitution;  and  on  this  point,  for  your  con- 
venience I  refer  to  and  quote  from  the  following  decisions: 

In  the  Kentucky  Railroad  Tax  Cases,  115  U.  S.  337,  the  authority  of 
the  Legislature  to  classify  property  for  the  purpose  of  taxation  is  sus- 
tained; and  it  is  said  that: 

"The  rule  of  equality  in  respect  to  the  subject  only  requires  the  same  means  and 
methods  to  be  applied  impartially  to  all  the  constituents  of  each  class,  so  that  the  law 
shall  operate  equally  and  uniformly  upon  all  persons  in  similar  circumstances." 

It  is  true  that  the  Kentucky  statute  places  all  railroads  in  one  class, 
distinct  from  the  property  of  other  corporations,  for  the  purpose  of 
taxation,  but  the  right  to  classify  property  for  that  purpose  is  sanctioned 
by  that  decision,  and  the  decision  places  no  restriction  on  the  discretion 
of  the  Legislature,  as  to  the  basis  upon  which  different  classes  may  be 
constituted. 

It  is  stated  in  the  opinion,  page  337,  that  there  is  nothing  in  the  Con- 
stitution of  Kentucky  that  requires  taxes  to  be  levied  by  a  uniform 
method  upon  all  descriptions  of  property.  Neither  is  there  anything 
in  the  Constitution  of  California  requiring  uniformity  of  method  in 
levying  taxes. 

In  that  opinion  it  is  further  stated  that  "  the  whole  matter  is  left  to 
the  discretion  of  the  legislative  power,  and  there  is  nothing  to  forbid  the 
classification  of  property  for  the  purposes  of  taxation  and  the  valuation 
of  different  classes  by  different  methods." 

The  same  can  be  said  of  the  Constitution  of  this  State;  and  when  the 
Constitution  itself  has  made  railroads  operated  in  more  than  one 
county  a  class  for  one  purpose — for  the  purpose  of  assessment — there  is 
nothing  unreasonable  in  the  Legislature  adopting  that  classification  in  the 
further  proceedings  connected  with  the  levying  and  collection  of  taxes. 


—  20  — 

The  authority  to  enact  laws  applicable  to  a  class  is  sustained  in 
Abeel  et  at.  vs.  Clark,  84  Cal.  226,  where  the  law  was  upheld  as  being 
constitutional,  which  provided  for  the  vaccination  of  children  attending 
the  public  schools,  and  for  the  exclusion  therefrom  of  unvaccinated 
children.  It  is  said  in  the  opinion,  page  213,  that,  "  An  act  to  be 
general  in  its  scope  need  not  include  all  classes  of  individuals  in  the 
State;  it  answers  the  constitutional  requirement  if  it  relates  to  and 
operates  uniformly  upon  the  whole  of  any  single  class." 

In  Pullman's  Car  Company  vs.  Pennsylvania,  141  U.  S.  18,  the  Court 
said: 

"In  the  State  Railroad  Tax  Cases,  92  U.  S.  575, it  was  adjudged  that  a  statute  of  Illinois, 
by  which  a  tax  on  the  entire  taxable  property  of  a  railroad  corporation,  including  its 
rolling  stock,  capital,  and  franchise,  was  assessed  by  the  State  Board  of  Equalization, 
and  was  collected  in  each  municipality  in  proportion  to  the  length  of  the  road  within 
it,  was  lawful,  and  not  in  conflict  with  the  Constitution  of  the  State,  and  Mr.  Justice 
Miller,  delivering  judgment,  said: 

"  'Another  objection  to  the  system  of  taxation  by  the  State  is,  that  the  rolling  stock, 
capital  stock,  and  franchise  are  personal  property,  and  that  this,  with  all  other  personal 
property,  has  a  local  situs  at  the  principal  place  of  business  of  the  corporation,  and  can 
be  taxed  by  no  other  county,  city,  or  town  but  the  one  where  it  is  so  situated.  This 
objection  is,  based  upon  the  general  rule  of  law  that  personal  property,  as  to  its  situs, 
follows  the  domicile  of  its  owner.  It  may  be  doubted,  very  reasonably,  whether  such  a 
rule  can  be  applied  to  a  railroad  corporation  as  between  the  different  localities  embraced 
by  its  line  of  road.  But,  after  all,  the  rule  is  merely  the  law  of  the  State  which  recog- 
nizes it;  and  when  it  is  called  into  operation  as  to  property  located  in  one  State  and 
owned  by  a  resident  of  another,  it  is  a  rule  of  comity  in  the  former  State  rather  than 
an  absolute  principle  in  all  cases.  (Green  vs.  Von  Buskirk,  5  Wall.  312.)  Like  all  other 
laws  of  a  State  it  is  therefore  subject  to  legislative  repeal,  modification,  or  limitation; 
and  when  the  Legislature  of  Illinois  declared  that  it  should  not  prevail  in  assessing 
personal  property  of  railroad  companies  for  taxation,  it  simply  exercised  an  ordinary 
function  of  legislation.    (92  IT.  S.  607,  608.) 

"'It  is  further  objected  that  the  railroad  track,  capital  stock,  and  franchise  is  not 
assessed  in  each  county  where  it  lies,  according  to  its  value  there,  but  according  to  an 
aggregate  value  of  the  whole,  on  which  each  county,  city,  and  town  collects  taxes 
according  to  the  length  of  the  track  within  its  limits.  It  may  well  be  doubted  whether 
any  better  mode  of  determining  the  value  of  that  portion  of  the  track  within  any  one 
county  has  been  devised,  than  to  ascertain  the  value  of  the  whole  road,  and  apportion 
the  value '(not  the  property)  'within  the  county  by  its  relative  length  to  the  whole. 
This  Court  has  expressly  held  in  two  cases,  where  the  road  of  a  corporation  ran  through 
different  States,  that  a  tax  upon  the  income  or  franchise  of  the  road  was  properly 
apportioned  by  taking  the  whole  income,  or  value  of  the  franchise,  and  the  length  of 
the  road  within  each  State,  as  the  basis  of  taxation.'  (  Delaware  Railroad  Tax,  18  Wall. 
206 ;  Erie  Railroad  vs.  Pennsylvania,  21  Wall.  492;  92  U.  S.  608,  611.)" 

In  the  case  of  Pacific  Express  Co.  vs.  Seibert,  State  Auditor,  et  al., 
decided  by  the  United  States  Supreme  Court,  January  4,  1892,  and 
reported  in  Vol.  142  of  U.  S.  Reports,  page  339,  said  doctrine  is  again 
affirmed  and  laid  down.     At  page  253,  the  Court  say: 

"This  Court  has  repeatedly  laid  down  the  doctrine  that  diversity  of  taxation,  both 
with  respect  to  the  amount  imposed  and  the  various  species  of  property  selected,  either 
for  bearing  its  burdens  or  for  being  exempt  from  them,  is  not  inconsistent  with  a  perfect 
uniformity  and  equality  of  taxation  in  the  proper  sense  of  those  terms.    *    *    * 

"The  rules  of  taxation,  in  this  respect,  were  well  stated  in  the  opinion  of  the  Court, 
delivered  by  Mr.  Justice  Bradlev,  Railroad  Company  vs.  Pennsylvania,  134  II.  S.  232,  237, 
10  Sup.  Ct.  Hep.  533,  as  follows: 

"'The  provision  in  the  fourteenth  amendment,  that  no  State  shall  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws,  was  not  intended  to  prevent  a 
State  from  adjusting  its  system  of  taxation  in  all  proper  and  reasonable  ways.  It  may, 
if  it  chooses,  exempt  certain  classes  of  property  from  any  taxation  at  all,  such  as 
churches,  libraries,  and  the  property  of  charitable  institutions.  It  may  impose  different 
specific  taxes  upon  different  trades  and  professions,  and  may  vary  the  rates  of  excise 
upon  various  products.  It  may  tax  real  estate  and  personal  property  in  a  different 
manner.  It  may  tax  visible  property  only,  and  not  tax  securities  for  payment  of 
money.  It  may  allow  deductions  for  indebtedness,  or  not  allow  them.  *  *  *  It 
would,  however,  be  impracticable  and  unwise  to  attempt  to  lay  down  any  general  rule 
or  definition  on  the  subject  that  would  include  all  cases.  They  must  be  decided  as  they 
arise.  We  think  that  we  are  safe  in  saying  that  the  fourteenth  amendment  was  not 
intended  to  compel  the  State  to  adopt  an  iron  rule  of  equal  taxation.    If  that  were  its 


—  21  — 

proper  construction,  it  would  not  onlv  supersede  all  those  constitutional  provisions 
an.l  laws  of  some  of  the  States  whose  obiect  is  to  secure  equality  of  taxation,  and 
which  are  usually  accompanied  with  qualification*  deemed  mat. -rial,  but  it  would 
render  nugatory  those  discrimination!  which   the  beat   interests  of   m  luire, 

which  arc  necessary  tor  the  enoouragemenl  ol  needed  and  useful  industries  and  the 

ment    of  "intemperance    and    vice,    and    Which    every    State,    in    DIM    tot r 

another,  deems  11  expedient  to  adopt." 

•In  tin- case  of  1  ,i>n  ra  ncr  OompOnV  vs.  \r,r    )',,,/..  L34    I      EL,    >>i,  006,  607,  10  8up.  Ot,  Rep. 

Lng   through    Mr.   Justice    Field,  said:     T.nt    t  he  amendment    (the 

fourteenth)  does  not  prevent  the  classification  of  property  for  taxation— subject  in 

kin. I  of  property   to  one  rate  of  taxation,  and   another  kind  of   property   to  a  different 

rate — distinguishing  between  franchises,  licenses,  and  privileges,  and  visible  and  t. 
ble property,  and  between  real  and  persona]  property.    Nor  does  the  amendment  pro 
hihit  special  legislation.    Indeed,  the  greater  pari  of  all  legislation  is  special!  either  in 
lent  to  which  it  operates,  or  the  objects  sought  to  he  obtained  by  it;  and  when 
such  legislation  applies  to  artificial  bodies,  it  is  not  open  to  objection  if  all  such  bodies 

are  treated  alike,  under  similar  circumstances  and  conditions,  in  respect  to  the  privi- 
leges con  fcrred  upon  them  and  the  liabilities  to  which  they  are  subjected.  Inderthe 
Statute  Of  New  York,  all  corporations,  joint-stock  companies,  and  associations  of  tin- 
same  kind  are  subjected  to  the  same  tax".  There  is  the  same  rule applica ble  to  all,  under 
the  same  conditions,  in  determining  the  rate  of  taxation.     There  is  no  disoriminatioii 

in  favor  of  one  against  another  of  the  same  (lass."     Citing  a  long  list  of  authorities." 

The  face  of  total  taxes  due  and  unpaid  for  the  years  1885,  1886,  and 
1887,  by  the  Central  and  Southern  Pacific  systems  is  as  follows: 

1885 - $715,363  93 

1886 648,957  05 

1887 - 647,439  20 

Total - - ^2,011,760  18 

hitTerence  between  this  amount  and  that  mentioned  in  Controller's 
report  for  forty-second  and  forty-third  fiscal  years,  page  29,  is  made  up  as 
follows,  viz.:  Taxes  of  North  Pacific  Coast  Railroad  for  1885,  $5,339  38; 
for  1886,  .115,602  17;  making  in  all  $20,941  51  improperly  included  or 
charged  to  the  Southern  Pacific  system  of  railroads. 

THIRD. 
Taxks  from  1888  to  1892,  inclusive  ;  Paid  in  Full. 

Since  1887  the  railroad  companies  have  not  claimed  that  the  Federal 
franchise  has  been  assessed,  and,  by  reason  of  the  foregoing  authorities, 
they  have  also  practically  abandoned  the  defense  of  conflict  of  the  State 
Constitution  with  the  fourteenth  amendment  to  the  Federal  Constitution, 
in  reference  to  the  assessment  of  railroads  operated  in  more  than  one 
county  and  in  reference  to  the  deduction  of  railroad  mortgages,  as  fully 
shown  from  the  fact  that  the  companies  have  promptly  and  fully  paid 
all  taxes  levied  since  1887. 

In  view  of  the  decisions  above  cited  and  the  offer  of  the  Railroads, 
through  their  attorney,  Mr.  Craig,  to  pay  in  full  all  taxes,  penalties, 
interest,  and  costs  in  the  case  of  People  vs.  San  Pablo  and  Tulare  Rail- 
road Company,  now  pending  in  the  United  States  Supreme  Court,  I 
think  that  litigation  in  this  State  arising  out  of  the  levy  of  taxes  upon 
railroads  is  practically  ended,  except  as  to  the  taxes  remaining  unpaid. 
U  an  adjustment  of  these  taxes  can  be  made,  the  people  will  no  longer 
be  burdened  with  litigation  in  reference  to  taxation  of  railroad  com- 
panies. 


—  22  — 
CONCLUDING  OBSERVATIONS. 

The  companies  insist  that  previous  to  1887  the  Federal  franchises 
were  included  in  the  assessment,  and  hence  invalidated  all  assessments 
made  by  the  State  Board  of  Equalization.  This,  however,  can  apply 
only  to  the  "Central  Pacific  Railroad  Company"  and  "Southern  Pacific 
Railroad  Company  "  roads  proper,  for  they  are  the  only  railroad  cor- 
porations in  California  which  ever  had  or  claimed  a  Federal  franchise. 
None  of  the  branches  or  roads  of  other  corporations  operated  by  these 
companies  in  this  State  ever  had  a  Federal  franchise;  no  defense  of  that 
character  was  ever  made  to  any  of  the  suits  brought  for  taxes  levied 
upon  said  branch  roads.  It  may  therefore  be  considered  strange  that 
my  predecessors  should  have  permitted  the  question  of  the  taxation  of 
a  Federal  franchise  to  interfere  with  the  suits  brought  against  the  branch 
roads  of  the  Southern  Pacific  and  Central  Pacific  systems. 

The  companies  also  contend  that  previous  to  1887  they  were  assessed 
at  too  great  a  value  per  mile  for  the  number  of  miles  of  road  within  the 
State.  Therefore,  I  have  prepared  a  table  showing  the  total  assessed 
value  of  all  property  in  the  State  for  each  year  from  1880  to  1892, 
inclusive;  also  the  total  assessed  value  of  the  railroad  companies  for 
those  years  and  the  proportion  of  the  valuation  of  railroads  as  compared 
with  the  assessed  value  of  all  the  property  in  the  State,  together  with 
the  State  rate  of  taxes,  viz.: 


STATEMENT 

Showing  the  total  assessed  value  of  all  property  assessed  in  the  State,  and  what  portion 
thereof  was  assessed  to  railroads  and  the  percentage  of  the  railroad  assessments  as  com- 
pared with  the  whole. 


Year. 

State  Rate 

of 
Taxation. 

Total  Assessed 

Value  of  all 

Property  in  the 

State. 

Total  Assessed 

Value  of  all 

Railroads  in  the 

State. 

Percentage 
of  Railroad 
Assess- 
ments. 

1880 

.64 

.655 

.596 

.497 

.452 

.544 

.56 

.608 

.504 

.722 

.58 

.446 

.434 

$666,202,674  00 

658,691,059  00 

607,472,762  00 

764,763,559  00 

821,604,703  00 

859,779,423  00 

817,445,729  00 

956,740,805  00 

1,107,952,700  00 

1,111,550,979  00 

1,101,137,290  00 

1,239,647,063  00 

1,275,816,228  00 

$31,174,120  00 
34,829,668  00 
27,602,313  00 
40,017,000  00 
50,746,500  00 
49,035,750  00 
48,051,100  00 
47,673,453  00 
43,242,652  00 
40,488,652  00 
40,198,652  00 
41,414,000  00 
41,976,000  00 

4.68 

1881 

5.29 

1882 

4.54 

1883       

5.23 

1884 

1885 

6.1 

5.7 

1886 

1887 

5.8 
4.9 

1888 

3.90 

1889 

3.64 

1890                  

3.64 

1891 

3.34 

1892 

3.29 

[Note. — See  Controller's  Report  for  1888,  pages  21  to  27.    The  above  includes  all  rail- 
roads then  in  the  State  other  than  street  car  lines.] 


—  23  — 

The  statement  following  shows  the  total  taxes  of  the  Central  Pacific 
and  Southern  Pacific  systems  of  railroad  from  1880  to  1892,  including 
county  taxes,  except  for  the  years  1880,  1881,  and  1882: 


Year. 

State  Tax. 

County  Tax 

Total. 

1  SSI  1                 

$181,364  90 

L76,486  00 
209,060  <mi 
240,448  00 

L': ',s,r>(;<>  .hi 
268£32  m 
174,610  00 
245,480  00 
194,300  00 
151,640  00 
147,047  88 

# 

* 
$375,104  75 
444,323  12 
474,915  93 
410,397  06 
881,207  20 
:;..lmi<;  <m 
314,876  21 

:U2.7!>:;  88 
326,651  52 

* 

issi 

1882 

L888 

$661,539  75 

l^t        ..  

663,373  12 

1886 

715,363  93 

1886 

(IIS.!).',?   06 

1887 

1888 

647,439  20 
476,626  90 

1888  -               

560,356  21 

1890 

508,218  07 

1891 

494,433  66 

1892  .. 

473,699  40 

Totals.                            

$2,576,352  65 

$3,696,304  41 

$6,272,657  06 

*  Unable  to  give;  no  records  in  office  of  Controller  or  State  Hoard  of  Equalization  on  this  subject. 

The  county  tiixos  levied  upon  said  roads  for  these  three  years  are  estimated  to  aggregate  $1,147,700 

A  portion  of  such  taxes  were  paid  under  settlements  and  compromises  made  with  Boards  oi  Super 

of  various  counties,  as  set  forth  on  page  5  hereof.    I  have,  however,  in  this  report  stated  the 

correct  amount  of  both  State  and  county  taxes  remaining  unpaid  for  each  year. 

The  following  tables  show  the  years  the  roads  were  assessed,  the  mile- 
age operated,  amount  of  assessed  value  per  mile,  total  assessment,  total 
tax  of  each  railroad  separately,  and  State  rate  of  taxation : 


California  Pacific  Railroad. 


Year. 


Miles 
Operated. 


Amount 

per  Mile. 


Total 
Assessment. 


Total  Taxes 


State  Kate 
of  Taxation 
on  each  $100. 


Remarks. 


1880... . 
1881.... 
1882.... 
1883  ... 
1884.... 
1885.— 
1886.... 
1887— . 
1888.... 
1889— . 
1890—. 
1891.... 


112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 
112.50 


$29,889  40 
24,000  00 
17,777  77 
17,777  77 
22,222  22 
22,222  22 
22,222  22 
22,222  22 
22,222  22 
17,777  77 


$1,801,300 
l.so.;.jf,.i 
1,462,500 
1,800,000 
2,000,000 
2,000,000 
2,000,000 
2,500,000 
2,500,000 
2,500,000 
2,500,000 
2,500,000 
2,000,000 


$25,967  61 
27,801  70 
28,859  21 
28,985  57 
37,015  45 
33,623  22 
38,994  14 
35,037  24 
31,791  52 
23,795  92 


.64 

.<;.v, 

.596 

.497 

.452 

.544 

.56 

.608 

.504 

.722 

.58 

.446 

.434 


}  Compromised 

by 
E.  C.  Marshall. 

Not  paid. 

Not  paid. 

Not  paid. 

Paid. 

Paid. 

Paid. 

...Paid. 

First  installm't  paid. 


24 


Central  Pacific  Railroad. 

V 

Year. 

Miles 
Operated. 

Amount 

Assessed 
per  Mile. 

Total 
Assessment. 

Total  Taxes. 

State  Rate 
of  Taxation 
on  each  $100. 

' 

1880 

$12,239,456 
15,055,500 
13,010,520 
18,000,000 
24,000,000 
22,000,000 
20,000,000 
18,000,000 
15,000,000 
13,000,000 
13,000,000 
13,000,000 
13,000,000 

.64 

•65| 

.596 

.497 

.452 

.544 

.56 

.608 

.504 

.722 

.58 

.446 

.434 

^ 

1881.... 

Compromised 

t               by 

E.  C.  Marshall. 
Not  paid. 

1882.... 

1883  — 
1884.... 
1885— 

602.22 
626.22 
640.68 
640.68 
719.15 
747.14 
746.76 
746.76 
746.76 
746.76 

$29,889  40 
38,312  95 
34,338  51 
31,216  83 
25,017  37 
20,076  55 
17,408  53 
17,408  53 
17,408  53 
17,408  53 

$276,865  10 
339,956  61 
375,013  61 
315,048  04 
295,740  71 
218,312  76 
222,401  35 
205,421  43 
193,584  88 
191,410  32 

1886 

...Not  paid. 

1887 

.Not  paid. 

1888.... 

Paid. 

1889— 

Paid. 

1890... . 

..Paid. 

1891.... 

.  Paid. 

1892.... 

First  installm't  paid. 

Northern  Railway. 


1880— 
1881... 
1882 ... 
1883... 
1884... 
1885— 
1886 ... 
1887 ... 
1888... 
1889... 
1890— 
1891— 
1892 ... 


148.40 
148.40 
148.40 
148.40 
148.40 
148.40 
385.25 
385.25 
385.25 
385.25 


$13,477  08 

15,498  65 

15,498  65 

18,194  07 

20,215  63 

14,993  26 

9,085  00 

7,789  15 

7,787  15 

8,000  00 


$1,492,758 
1,543,050 
1,143,000 
2,000,000 
2,300,000 
2,300,000 
2,700,000 
3,000,000 
2,225,000 
3,500,000 
3,000,000 
3,000,000 
3,082,000 


$28,955  23 
30,680  21 
31,499  95 
37,211  95 
41,483  45 
27,640  09 
54,080  56 
41,278  71 
39,918  46 
40,037  74 


.64 

•65| 

.596 

.497 

.452 

.544 

.56 

.608 

.504 

.722 

.58 

.446 

.434 


Compromised 

\  by 

E.C.  Marshall. 

Not  paid. 

._ ...Not  paid. 

Not  paid. 

...Paid. 

Paid. 

Paid. 

Paid. 

First  installm't  paid. 


San  Pablo  and  Tulare  Railroad. 


1880— 
1881. ... 
1882.... 
1883— 
1884— 
1885— 
1886— 

1887  — 

1888  — 
1889*— 


46.00 
46.00 
46.00 
46.00 
46.00 
46.00 
46.00 
46.00 
46.00 


$15,217  39 
20,652  17 
19,565  21 

19.564  21 

19.565  21 
19,565  21 


$492,800 
552,000 
460,000 
700,000 
950,000 
900,000 
900,000 
900,000 
900,000 


$10,074  76 
10,383  90 
10,702  17 
11,187  38 
11,886  85 
10,294  23 


.64 

•65! 

.596 

.497 

.452 

.544 

.56 

.608 

.504 


Compromised 
by 

E.  C.  Marshall. 


.Not  paid. 
.Not  paid. 
.Not  paid. 
Paid. 


♦Absorbed  by  Southern  Pacific. 


Southern  Pacific  Railroad. 


1880— 
1881.... 
1882.... 
1883—. 
1884.... 
1885... 
1886.... 
1887— 
1888.... 
1889.... 
1890— 
1891... 
1892.... 


870.74 

957.02 

957.02 

957.02 

1,022.33 

1,022.35 

1,493.77 

1,522  50 

1,654  87 

1,701.40 


$14,929  82 

17,763  47 

17,763  47 

17,763  47 

16,139  60 

13,694  20 

10,041  70 

9,852  21 

9,366  29 

9,286  47 


$10,483,518 
11,739,915 
8,226,135 
13,000,000 
17,000,000 
17,000,000 
17,000,000 
16,500,000 
14,000,000 
15,000,000 
15,000,000 
15,500,000 
15,800,000 


$209,677  15 

244,550  70 

269,289  13 

256,524  11 

251,134  26 

186,756  60 

244,880  16 

226,480  69 

229,138  80 

218,455  42 

.64 

.65J 

.596 

.497 

.452 

.544 

.56 

.608 

.504 

.722 

.58 

.446 

.434 


Compromised 
)■  by 

E.  C.  Marshall. 

Not  paid. 

Not  paid. 

Not  paid. 

Paid. 

Paid. 

Paid. 

Paid. 

First  installm't  paid. 


—  25  — 

fibtttA  Raogfe  Otafl  linilroad. 


Optt»fcd.         ^    Ml!(, 


Tolal 

Assessment. 


TOttJ  Tnxrs. 


of  Taxation 
on  each  $hh». 


1887 


45.30     $16,558  29 


1750,000 


$10,178  48 


Not    paid. 


SUMMARY. 

I. 

The  total  amount  of  State  and  county  taxes  due  from  the  Southern 
Pacific  and  Central  Pacific  railroad  systems  on  account  of  the  face  of 
tin  taxes  remaining  unpaid  is  as  follows: 

State  and  county  taxes  for  1880, 1881,  and  1882 $416,252  28 

Mate  and  county  taxes  for  1883 222,251  33 

ite  and  county  taxes  for  1884 323,852  49 

ite  and  county  taxes  for  1885 715,363  93 

ite  and  county  taxes  for  1886 648,957  05 

State  and  county  taxes  for  1887 647,439  20 

Total $2,974,116  28 

Which  does  not  include  interest,  penalties,  or-  costs. 

Of  the  above  total,  $962,356  10  is  the  sum  remaining  unpaid  for  taxes 
for  the  years  1880  to  1884,  inclusive,  after  acceptance  of  the  compromise 
money  covering  those  taxes  by  Attorney-General  Marshall.  As  to 
whether  this  sum  is  beyond  recovery  by  a  reassessment  is  hereinbefore 
fully  discussed.  If  an  Act  is  passed  authorizing  a  final  and  legal  settle- 
ment the  companies  would  probably  pay  30  per  cent  of  the  above 
amount,  which  would  make  in  the  aggregate  67  per  cent  of  the  whole 
amount  levied  for  those  years. 

The  balance  is  $2,011,760  18,  being  face  of  total  taxes  for  the  years 
1885,  1886,  and  1887,  no  part  of  which  has  been  paid. 

II. 

There  are  three  feasible  ways,  in  my  judgment,  in  which  to  dispose 
of  these  questions:  1.  The  Legislature  can  pass  an  Act  authorizing  the 
Attorney-General  to  accept  not  less  than  a  certain  sum  in  satisfaction 
of  all  claims  the  State  may  have  for  delinquent  taxes.  2.  The  Legisla- 
ture can  pass  an  Act  declaring  the  exact  amount  to  be  accepted  in  full 
satisfaction  for  all  back  taxes.  3.  By  a  reassessment  bill  providing  for 
the  reassessment  of  railroads  for  the  years  of  their  default,  1880  to  1887, 
inclusive. 

In  the  event  of  the  enactment  of  a  reassessment  statute,  it  should  not 
apply  to  those  years  solely,  for  such  an  Act  would,  in  my  opinion,  be 
unconstitutional,  in  view  of  the  ruling  laid  down  by  the  Supreme  Court 
in  Bourn  vs.  Hart  et  al.,  93  Cal.  321 ;  and  see,  also,  ex  parte  Westerfeld, 
55  Cal.  550;  Subdivisions  10  and  33  of  Section  25,  Article  IV,  State 
Constitution.  Such  Act  should  be  general  in  terms,  applying  to  all 
property  that  has  escaped  taxation  by  reason  of  the  irregularities  or 
defects  mentioned  in  the  bill,  since  the  adoption  of  the  new  Constitution, 
and  should  apply  to  the  future  as  well  as  the  past.     Provision  ought 


—  26  — 

also  to  be  made  whereby  the  companies  would  be  credited  with  all  sums 
paid  on  account  of  such  delinquent  taxes,  and  a  day  should  be  fixed  in 
the  bill  on  which  such  reassessment  is  to  be  made,  and  should  provide 
for  the  issuing  and  serving  of  due  notice  to  persons  and  corporations  to 
be  reassessed,  and  requiring  from  them  a  statement  of  property  for  the 
years  for  which  the  reassessment  is  to  be  made,  also  fixing  penalties 
for  failure  to  furnish  such  statements.  In  other  words,  a  reassessment 
bill  should  be  as  complete  as  to  reassessments  as  the  Political  Code  is 
now  in  its  provisions  for  assessing  property.  Such  statute  should  be 
made  a  part  of  said  Code,  in  order  that  the  law  and  all  proceedings 
thereunder  should  be  liberally  construed.  If  the  reassessment  law  is  in 
the  shape  of  a  separate  statute,  it  must  be  strictly  construed;  the  rule 
of  liberal  construction  applies  only  to  the  Codes.  It  should  provide 
also  for  penalties,  interest,  and  costs,  without  reference  to  any  other 
statute.  That  is  to  say,  the  Act  should  be  complete  in  itself  for  the 
carrying  out  of  the  objects  intended;  and  it  should  be  thereby  enacted 
that  the  judgment  of  any  Court  declaring  an  assessment  invalid  will 
be  sufficient  jurisdictional  ground  for  the  reassessment.  The  bill  also 
should  designate  the  Board  or  officer  making  the  assessment. 

Many  serious  questions  may  arise  in  regard  to  such  reassessment; 
among  which  I  will  specify:  In  making  the  reassessment,  should  the 
rate  of  taxation  be  the  same  as  fixed  for  the  year  in  which  such  reas- 
sessment is  made,  or  should  it  be  the  rate  for  the  respective  years  in 
which  the  assessments  have  been  held  invalid?  The  latter  rate  would 
yield  a  much  larger  sum  than  the  former.  Is  there  any  mode, 
through  reassessment,  whereby  the  people  may  recover  from  these 
corporations  the  interest  upon  the  taxes  from  the  time  they  should 
have  been  paid,  if  properly  assessed  originally,  up  to  the  time  of  pay- 
ment? What  notice  should  be  given  and  what  statements  required? 
Will  a  reassessment  bill  give  to  the  people  as  much  money  as  an  Act 
of  the  Legislature  authorizing  a  settlement  of  these  taxes? 

As  before  stated,  the  railroad  companies  have  offered  to  pay  $1,207,- 
056,  being  60  per  cent  of  the  taxes  of  1885,  1886,  and  1887. 

My  opinion  is  that  the  taxes  for  1887  can  be  collected  in  full,  in 
the  actions  before  the  Superior  Court  of  San  Francisco,  Department  4, 
wherein  the  trials  of  the  suits  to  recover  the  same  are  in  progress. 

If  the  Legislature  will  authorize  the  receipt  of  the  above  or  greater 
sum  in  settlement,  with  7  per  cent  interest  from  the  day  the  taxes 
became  delinquent,  the  companies  will  doubtless  accept  the  proposition. 
Such  a  settlement  could  be  effected  within  a  short  period,  whereas  if 
reassessment  is  alone  relied  on  there  is  no  assurance  that  the  compa- 
nies will  pay;  they  may  continue  the  litigation  for  years,  as  they  have 
previously  done,  and  the  people  be  further  balked  and  delayed  in  the 
receipt  of  these  State  and  county  revenues  justly  collectible  and  unrea- 
sonably in  default. 

In  view  of  the  fact  that  the  State  has  already  been  defeated  in  all  the 
suits  for  the  taxes  of  1885  and  1886,  excepting  the  San  Pablo  and  Tulare 
case  in  the  United  States  Supreme  Court,  and  the  further  fact  that  the 
railroad  companies  have  paid  taxes  in  full  since  1887,  and  that  there  is 
now  no  doubt  as  to  the  validity  of  our  Constitution  concerning  the  tax- 
ation of  railroads  operated  in  more  than  one  county,  and  considering 
that  it  is  possible  to  end  pending  litigation  in  reference  thereto,  would 
it  not  be  better  for  the  people  at  this  time  to  obtain  a  reasonable  settle- 


—  27  — 

ment,  thereby  putting  money  into  the  State  and  county  treasuries  for 
immediate  public  use,  than  to  wait  perhaps  many  months  to  effect  any 
result  by  moans  of  a  reassessment  of  the  roads  and  litigation  there- 
under? I  think  that  the  following  is  the  best  course  to  pursue  in  the 
settlement  of  this  vexatious  question: 

1.  That  a  joint  committee  of  Senate  and  Assembly  be  appointed,  to 
which  committee  all  bills  upon  the  subject  should  be  referred.  That 
the  committee  examine  the  subject-matter  involved,  and  report  to  both 
houses  the  result  of  the  committee's  consideration,  which  should  include 
whether  the  State  can  obtain  more  of  these  delinquent  tax  moneys  by 
settlement  than  by  reassessment. 

_'.  That  two  hills  ought  to  be  passed,  one  authorizing  the  Attorney- 
( General  to  accept  not  less  than  a  certain  sum,  to  be  fixed  by  the  Legis- 
lature, for  a  release  by  the  State  of  all  claims  for  these  taxes,  and  also 
a  perfect  bill  providing  for  a  reassessment,  so  that  in  the  event  a  settle- 
ment is  not  obtainable  a  valid  reassessment  may  be  made. 

From  a  perusal  of  the  statements  and  tables  appearing  herein  the 
members  of  the  Legislature  should  be  enabled  to  determine  whether  or 
not  the  companies  have  any  moral  or  equitable  grounds  for  objection  to 
the  assessments  made  for  the  years  1885,  1886,  and  1887.  It  must  be 
remembered,  however,  that  the  roads  are  of  but  little  greater  value  now 
than  at  the  time  the  assessments  were  made,  while  other  property  in 
the  State  has  largely  increased  in  value  since  1887;  it  follows  that 
taxes  on  railroads  are  relatively  less  now  than  they  were  in  those  years. 
Respectfully,  your  obedient  servant, 

WM.  H.  H.  HART, 

Attorney-General. 


APPENDIX. 


STATEMENT  No.  1. 

Showing  the  Assessed  Value  of  each  railroad  of  the  Central  Pacific  System,  and  the  Tax  Levied 
for  State  purposes  against  each  road,  for  the  year  1880. 


Names  of  Railroads. 

Total  Assessment. 

Amount  of  Tax  for 
State  Purposes. 

California  Pacific 

$1,801,300  00 

12,239,456  00 

1,492,758  00 

539,098  00 

492,800  00 

10,483,518  00 

597,632  00 

249,725  00 

$11,528  32 
78,332  52 
9,553  65 
3,450  23 
3,153  92 
67,094  52 
3,824  84 
1,598  24 

Central  Pacific . 

Northern  Railway 

Sacramento  and  Placerville _ 

San  Pablo  and  Tulare 

Southern  Pacific   

Stockton  and  Copperopolis _. 

Vaca  Valley  and  Clear  Lake 

Totals _ _ 

$27,896,287  00 

$178,536  24 

STATEMENT  No.  2. 


Showing  the  Assessment  of  the  Railroads  under  the  Central  Pacific  System,  for  the  year 
1881,  giving  the  Counties  through  which  the  Roads  Run. 


Value  of  Property 

Delinquent  for 

Taxes. 


Amount  of 

Delinquent  Tax 

for  State  Pur- 


California  Pacific _ 

Napa,  Sacramento,  and  Yolo: 
Central  Pacific 

Alameda,  Butte,  Fresno,  Merced,  Nevada,  Placer,  Sac- 
ramento, San  Francisco,  San  Joaquin,  Santa  Clara, 
Shasta,  Sierra,  Stanislaus,  Sutter,  Tehama,  Tulare, 
and  Yuba. 

Northern  Railway _.. 

Alameda,  Colusa,  Contra  Costa,  Solano,  Tehama,  and 
Yolo. 

San  Pablo  and  Tulare 

Alameda,  Contra  Costa,  and  San  Joaquin. 

Southern  Pacific 

Fresno,  Kern,  Los  Angeles,  Monterey,  San  Benito,  San 
Bernardino,  San  Diego,  San  Francisco,  San  Mateo, 
Santa  Clara,  Santa  Cruz,  and  Tulare. 


$1,856,250  00 
15,055,500  00 

1,543,050  00 

552,000  00 
11,739,915  00 


$30,746,715  00 


$12,158  44 
98,613  53 


10,106  98 

3,615  60 
76,896  44 


$201,390  99 


Note.— Amount  of  delinquent  tax  for  county  purposes  not  obtainable. 


—  29 


STATEMEN  r  Xo.  3. 


Showing  the  Assessed  Value  of  each  BuOroad  <>f  the  i  Vntrnl  Pacific  System,  and  the  Tax  Levied 
for  State  purposes  against  each  road,  for  the  year  188t. 


Names  of  Railroads. 


Total  Assessment. 


A  mount  of  Tax  for 
State  Purposes. 


California  Pacific 

Central  Pacific. 

Northern  Railway 

Sacramento  and  Placeryillt 

San  Pablo  and  Tulare 

BoQthern  Pacific 

Stockton  :m«i  Copperopolia  - 
Vaca  Valley  and  <  Hear  Lake 

Totals. 


8L48&600  00 

13,010,520  00 

l.l  l.'i.ix 

21)1,1  MS  (mi 

IfKl  (NX)   IK) 

s. 221 1186  00 
248L026  I 


$25,219,483  00 


18,716  B0 

77,642  7<) 

6,812  28 

-'.711  80 

49,027  74 

23 10  86 

1,471  67 


$150808  08 


Notk.  -Amount  of  delinquent  tax  for  county  purposes  not  obtainable. 


—  30 


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